Palika Sathiraju vs Pydah Soma Malleswara Rao and others

The unsuccessful defendant is the Appellant. The respondents herein are the plaintiffs. The Plaintiffs filed the suit for eviction of the defendant from the plaint schedule property.

Briefly stated the facts are that the plaintiffs filed the suit mentioning in the plaint inter alia that the plaintiffs are the owners of the plaint schedule property which is a mango tope. They appointed the defendant as their watchman a few years ago for plaint schedule property and they allowed the defendant to live in the thatched hut existing in the mango tope belonging to the plaintiffs. On the directions of the plaintiffs the defendant was growing vegetables on small pieces of the land and the expenses therefore were being borne by the plaintiffs. The defendant suddenly became greedy and started appropriating the vegetables etc., for himself. Therefore, the plaintiffs paid an amount of Rs.1200/- to the defendant on 24-4-1980 and terminated his services. Fearing that the defendant might enter into the schedule property highhandedly they filed a suit O.S.No.17 of 1981 on the file of the Principal District Munsif s Court, Kakinada, and obtained an interim injunction against the defendant. Having come to know of the same, the defendant entered into the plaint schedule property and occupied the hut, and hence the suit.

The defendant resisted the suit by filing a prolix written statement mentioning inter alia that he was the tenant of the suit schedule property, having been inducted into the same about 30 years ago and he was continuing as a tenant holding over. He filed ATC No.434 of 1981 having come to know that the plaintiffs in collusion with the Village Karanam was trying to correct the pass books. He raised the thatched shed in the leasehold property and he was also raising tobacco seedlings, bobbarulu, ragi, horse gram, red gram etc., dry crops and that the mango usufruct was being shared equally between the landlords and the defendant. He pleaded further that the rent payable over the schedule land was Rs.350/- per year and he had been paying the rents regularly, and that there had been an attempt to dispossess him forcibly by bringing rowdy elements. Apprehending danger he filed ATC No.4 of 1981 before the Vacation Court at Rajahmundry. That petition was dismissed for default. According to the defendant, the suit schedule property is not a mango tope as contended and a part of it is dry land wherein the dry crops are being raised. Apprehending that the defendant would get perpetual tenancy rights the plaintiffs, according to the defendant filed the present suit against him with all false averments made in the plaint.

On the above pleadings, the Court below settled the following issues for trial:

Whether the plaintiffs are entitled to possession?

Whether the plaintiffs are entitled to the profits?

Whether the plaintiffs are entitled to interest?

Whether the Court has got the jurisdiction with regard to the relief for possession?

Whether the valuation is incorrect?

To what relief?

At the trial the 2nd plaintiff was examined himself as PW 1 and got Exs.A1 to A33 documents marked. The defendant besides examining as DW1 also examined three more witnesses and got Exs.B1 to B11 marked. Upon considering the evidence, both oral and documentary and upon hearing both sides, the Court below by its judgment dated 26-7-1988 decreed the suit with profits.

On issues 1 to 4 it held that the Court was unable to accept the case of the defendant that he was a cultivating tenant and therefore he must be a watchman as claimed by the plaintiffs and he could not be more than that. On issue No.2 the Court granted profits both past and future in favour of the plaintiffs, having aggrieved by the said findings the defendant as aforesaid has filed the present Appeal.

The learned Counsel for the appellant contended that the Court below having disbelieved mostly the evidence adduced by the plaintiffs to prove that the defendant was a watchman committed error in coming to the conclusion that the defendant must be a watchman as claimed by the plaintiffs and he could not be more than that. The learned Counsel further contended that when once the plaintiffs were not able to prove that the defendant was their watchman on the premise of which the suit was laid, the Court below ought to have dismissed the suit and there is no other alternative for it. On the other hand, the learned Counsel appearing for the plaintiffs contended that the specific plea taken by the defendant in the suit being a tenant, it is for the defendant to prove the same, and failure thereof would automatically entail a decree in the suit being decreed. The learned Counsel further contended that the suit schedule property being a mango tope, the plea of the defendant that he was a tenant could not have been considered. In view of the above contentions the points that arise for my determination in this Appeal are:

Whether the suit schedule property is a mango tope ?

Whether the defendant is a tenant under the plaintiff ?

Whether the defendant is a watchman as pleaded by the plaintiffs ?

To avoid any confusion, the parties may be referred to as they are originally arrayed in the suit.

Points 1 and 2 as set out supra, pertain to the jurisdictional aspect. The findings on these points ultimately if in the affirmative, would take away the jurisdiction of the civil Court and no relief for eviction could be granted as prayed for by the plaintiffs. Both these points are therefore integrally connected and touch the jurisdictional aspect. According to the specific averments made in the plaint, the suit schedule mentioned property (for short the ''suit property'') is a mango tope. The defendant having denied the same in his written statement pleaded inter alia that the suit property was given on lease for cultivating dry crops and to safeguard the mango trees and to share the usufruct thereof equally between him and the landlords. It is obvious from the said plea that the suit property is neither wholly a mango garden, nor wholly a dry land. A part of it is admittedly a mango tope. Even according to the evidence of PW! the defendant has been growing vegetables in a part of suit property and rest of it is a mango tope. Although the issue regarding the nature of the suit property is contentious as can be seen from the pleadings, no issue has been framed in regard thereto. Both parties have concentrated mainly on the issue of tenancy/ watchman as contended respectively by the parties. In ordinary course it would be better either to remit the matter back to the Court for framing the necessary issue and to dispose of the matter afresh, or keeping the matter before this Court and to call for a riding on this crucial aspect. Given the fact, that the suit was instituted more than 1 1/2 decades ago and since then the parties have been roming around the Courts, it is expedient to dispose of the appeal here itself instead of allowing a fresh round of litigation provided the evidence on record ultimately warrants a finding on Point No.1 in regard to the nature of the land. This, in my view would save unnecessary expenditure and inconvenience to both the parties.

Ex.Al is the registration extract of the partition deed dated 28-9-1971 whereunder the plaintiffs claim that they partitioned their properties including the suit property. This document does not help the Court in determining the crucial issue about the nature of the land in as much as it has not been specifically referred in this document that the suit property is either a garden or a dry land or a part of it garden and part of it dry land. Exs.A2 to A5 are the pattadar pass books issued in favour of the plaintiffs 1 to 4 respectively. Even these documents show the suit property which is covered by S.No. 156/4 as dry (meraka). It may be mentioned here that the defendant is assailing these documents on the ground that they have been obtained in collusion with the revenue authorities. The documentary evidence adduced on either side is not rendering any assistance to the Court for an effective adjudication of this point.

Coming to the oral evidence adduced on the point, PW1 deposed on oath in the chief-examination that the suit property was a mango garden. In the entire cross-examination running into several pages, it has not been controverter suggesting specifically even that the suit property is a dry land or a part of it is a dry land and a part of it is a tope. DW1 in his evidence stated that out of Ac.4-65 cents of land Ac.2-00 is a vacant land and he has been raising vegetables and dry crops and in the remaining extent of land there is a mango garden. So according to the evidence of DW1 the garden is there in an extent of Ac.2.65 cts. DW1 in the cross-examination admitted that there are about 120 mango trees besides palm rah and sapota trees in the tope. PW2, who is said to be the neighbouring tenant, stated in his evidence that the land under the cultivation of the defendant consisted of Ac.2-00 dry and Ac. 2-00 mango tope. DW3 stated that about Ac.3-00 of the land is dry and the remaining Ac. 2-00 is a mango tope. Apart from this inconsistency in the evidence in regard to the actual extent of the land covered by the garden and the balance extent covered by the cultivable land the fact remains that there is a garden. Evidence on record shows that variety of trees including that of mango, sapota, palmyrah, have been there in the garden. If the suit property is a mango tope the Special Officer under the Tenancy Act will not have any jurisdiction as it is excluded u/s 18 of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956. On the other hand, if it is a cultivable land, the provisions of the said Act will attract. If the suit property is partly mango tope and partly cultivable land, an anomalous situation arises. The property cannot be divided and the parties cannot be asked to approach the civil Court in respect of a part of it and the Tenancy Court in respect of the remaining part of it. Undoubtedly, the suit property is an integral whole. To wriggle out of such an anamolous situation, it is expedient to see what is the predominant purpose for which the properties are meant to be used. The test is, if the major part of the land is used for a particular purpose that becomes the predominant purpose, although the remaining part of it is being used for a different purpose. That apart it is riot uncommon that even in garden land crops might be raised in the vacant lands in between the tree to tree. Merely because such dry crops are raised and vegetables are grown the garden will not become a cultivable land, and such user will not take away the nature of the property. It is expedient, therefore, to see what is the predominant nature of the user or enjoyment of the property. Even on the own showing of the defendant the garden is occupied by Ac.2-65 cts. leaving the remaining Ac.2-00 as the dry land. That is an indicia that the predominant user enjoyment of the suit land is as a garden land but not as a cultivable land. It might be, in the left over bits of land the parties have been raising crops and growing vegetables. But that will not take away the predominant use or the nature of the property. The evidence on record clearly shows that there has been a hut in the garden land. Regardless of the fact that the hut is either erected by the defendant or by the plaintiffs themselves, the existence of the hut suggests in a way the nature of the land being tope land as it requires constant watch of the tope especially during the season when trees bear fruits. That is yet another indicia to determine the nature of the land.

The learned Counsel for the plaintiffs relied very much on Ex.A8, the certified copy of the order passed in IAs.1373 of 1981 and 272 of 1982 in ATC No.434 of 1981 by the Special Officer-cum-Principal District Munsif, Kakinada. The learned Special Officer under this order while dismissing the petition filed by the defendant under Order 39, Rule 1 of CPC seeking injunction has come to a conclusion in para 66 of his order as follows:

"Admittedly, Item No.1 contained mango tope. Even otherwise, the said report of the Commissioner discloses that item No. 1 contains predominantly mango-tope with palm rah trees etc., etc. It is not the case of either party, nor, it is the report of the Commissioner that Item No. 1 is a cultivable land or that any part thereof was ever cultivated. So, therefore, the alleged lease in favour of the petitioner, even if true, is only with respect of the usufruct of the said trees."

The findings given by the Courts in Interlocutory Applications are euphamery and are co-terminus with the result of the main proceeding. As such, no importance can be attached to those findings since those findings have been arrived at in a summary proceeding. Nevertheless in that case a Commissioner has been appointed and the report of the Commissioner insofar as is relevant has been considered by the learned Special Officer. The order containing the observation of the commissioner in his report, as regards the nature of the land can be considered although the findings given by the Special Officer cannot be relied upon. As per the Commissioner''s observation the suit land is a garden. This lends support to the contention that the suit schedule property is predominantly a mango tope. In view of the admission made by the defendant that there are 120 mango trees besides palm rah and sapota trees, the area occupied by these trees can reasonably be assessed. Although the actual extent of the land covered by the trees cannot precisely be said it can easily be concluded that certainly it must be more than Ac.2.65 cts. of land having regard to the number of trees existing on the land. For the above reasons it has to be concluded that the suit property is a mango garden notwithstanding the fact that defendant might have been raising some dry crops in the remaining part of the suit schedule mentioned land which will not take away the character of the land as the garden land.

It is the specific plea of the defendant that he is a tenant under the plaintiffs having been inducted 30 years ago prior to the filing of the suit by them. Elsewhere in the evidence he sought to depose that he was a tenant even under the, father of the plaintiffs. Yet another stage, the evidence on the side of the defendant discloses that the father of the defendant was a tenant even under the predecessors of the plaintiffs from whom they had purchased the property. This inconsistent stand on the side of the defendant at the first instance excites some doubt in regard to his specific claim of tenancy. There has been no written lease deed, nor any document evidencing the payment of rents. The defendant has to either succeed or fail only on the basis of his oral evidence and is that of DWs.2 and 3. DWs.2 and 3 have claimed to be the neighbouring tenants to the suit schedule land. A perusal of the plaint schedule and the boundaries given therein, which are not in dispute, shows that the immediate neighbours of the suit schedule land are certainly not the persons under whom these witnesses are claiming to be the tenants. There is no evidence on record to show that at what distance of the suit schedule mentioned property these people have been cultivating the lands. That takes away the efficacy of the evidence of these two witnesses. There remains the evidence of DW1 alone. DW1 in his cross-examination at page 6 admitted squarely that there had been no documentary evidence to show that he was a tenant in the suit schedule tope. Therefore, it is only the ipse-dixit of this witness that ultimately remains to be considered.

Admittedly, the plaintiffs are the owners of the suit schedule property. While it is the case of the plaintiffs that the defendant is their watchman, it is the case of the defendant that he is their tenant. Either way the possession of the defendant over the suit schedule property which is undisputed is a permissive possession. The defendant, therefore, cannot validly take the plea of any adverse possession. If no evidence is adduced, by either of the parties to the suit, given the fact that the plaintiffs are the owners and the possession of the defendant is permissive, the suit for possession is liable to be decreed. The plea of tenancy certainly creates an embargo for such an automatic decree. Therefore, the defendant who has taken the specific plea of tenancy should prove the same. The burden is upon him to prove this specific plea of tenancy. Section 102 of the Indian Evidence Act postulates the said proposition. Section 102 of the Indian Evidence Act reads as under:

"102. On whom burden of proof lies.-The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."

It is no doubt true that the legal burden is on the plaintiffs, who filed the suit for eviction pleading that the defendant is their watchman, but when the defendant has taken a specific plea that he is a tenant, the evidentiary burden is upon him. If he is able to discharge the burden either by direct evidence or by the circumstantial evidence or even by raising some presumptions, the burden shifts to the plaintiffs on whom lies always the legal burden which remains constant. It is only the evidentiary burden that shifts from time to time. The defendant in this case has not adduced any cogent evidence to bring home the fact that he is the tenant. The importance of the issue cannot be lost sight of as it has already been mentioned supra that it touches the jurisdictional aspect. On his own showing there is no documentary evidence to establish the plea of tenancy. The defendant has not made even an attempt to summon the revenue records or to examine the village officers in proof of his tenancy, who can authoritatively speak on this contentious issue. Perhaps to avoid any such comment, he is making some unfounded allegation of collusion between the plaintiffs and the revenue officials. Instead, he examined DWs.2 and 3 whose evidence cannot be relied upon without any hesitation. DW4 is another witness examined on the side of the defendant who is a press reporter seeking to prove a press clipping published in "Vishalandra" Telugu Daily dated 28-1-1981. As can be seen from the evidence of this witness, it is nothing but mere hear say. The document has been marked in this case as Ex.B2. This news item published in this paper shows that there has been an attack on the part of the landlords against the tenant. News item published in a paper is in the nature of a second hand secondary evidence. Unless the person who is a direct witness to the incident and who furnished information is examined, the evidence of the press reporter who furnished the news item having gathered the same is nothing but hear say evidence, and therefore, is not admissible. Ex.B.2 coupled with the evidence of DW4 cannot, therefore, help the case of the defendant. The evidence both oral and documentary on the side of the defendant in my considered view, therefore, falls far short of the requisite proof of establishing the crucial issue of tenancy which touches the jurisdiction of the Court. Further more, the finding that the suit property is a mango garden, having regard to its predominant use, certainly negates the plea of tenancy, as envisaged by the Andhra Pradesh (Andhra Area) Tenancy Act.

Coming to the specific plea of the plaintiffs that the defendant is their watchman though they sought to rely upon certain accounts and the entries made therein, the Court below is very critical and skeptical about this sort of documentary evidence. Apart from the comment that has been made by the lower Court there shall be some evidence in the first instance whenever the accounts are produced in proof thereof before relying upon the relevant entries made therein to the effect that these accounts are maintained in due course of business. That proof alone makes these entries relevant. The probative value of the entries is an altogether different aspect. The plaintiffs who claimed that these entries had been made by their clerk failed to examine that clerk to prove these entries. Hence, they cannot be relied upon. Assuming for a moment that there is no evidence aliunde on the side of the plaintiffs to bring home the fact that the defendant is their watchman, would it in any way defeat the claim of the plaintiffs who seek the relief of possession is the question. It may be reiterated here, the contention of the learned Counsel for the defendant that having not accepted the documentary evidence on the side of the plaintiffs to show that the defendant is their watchman, the suit should have been automatically dismissed and there is no other alternative for the Court. I am afraid that I cannot accede the said contention of the learned Counsel inasmuch as I have already dealt in my judgment (supra) that the defendant having taken a specific plea of tenancy has not discharged the burden cast upon him in proving the plea of tenancy. u/s 102 of the Evidence Act even if there is no evidence on the side of the plaintiffs if the defendant fails to prove the specific plea taken by him he would fail. In that view of the matter even ultimately coming to the extreme conclusion that the plaintiffs miserably failed to prove that the defendant is their watchman it is of no consequence. Although there is no evidence aliunde in support of this plea, certain circumstances emanating from the record would probablise the said plea. The finding that the nature of the suit schedule property is predominantly a garden and the fact that there exists a hut for the defendant to reside in the garden and the failure of the defendant to prove his plea of tenancy are the circumstances in my considered view would go ultimately in favour of the plaintiffs in probabilising the fact that the defendant is if not a tenant, but is a watchman or a licensee. Certainly it is not a surmise or conjuncture to eliminate any valid foundation to base the plea of tenancy. After all in a civil suit ultimately the test is preponderance of probability. These probabilities would go in favour of the plaintiffs to establish that the status of the defendant is that of a watchman who failed to establish his specific plea that he is a tenant.

For the foregoing reasons this Court has no option except to dismiss the appeal while confirming the judgment and Decree of the lower Court.

In the result, the Appeal fails and it is accordingly dismissed. Under the circumstances, I direct the parties to bear their respective costs throughout.