Andhra Pradesh High Court – Amravati
Gaddam Bhiksham, vs Garikamukku Sarveswara Rao, on 28 January, 2025
APHC010535872012
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
TUESDAY ,THE TWENTY EIGHTH DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 848/2012
Between:
Gaddam Bhiksham, and Others ...APPELLANT(S)
AND
Garikamukku Sarveswara Rao and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. KAMBHAMPATI RAMESH BABU
Counsel for the Respondent(S):
1. E V V S RAVI KUMAR
The Court made the following:
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Second Appeal No.848 of 2012
Judgment:
This second appeal under Section 100 of the Code of Civil Procedure
(―C.P.C.‖ for short) is filed aggrieved against the Judgment and decree, dated
07.12.2011 in A.S.No.278 of 2010, on the file of the Principal District Judge,
West Godavari at Eluru, reversing the Judgment and decree, dated
04.08.2010 in O.S.No.689 of 2005, on the file of I Additional Junior Civil
Judge, Eluru.
2. The appellant Nos.1 to 8 herein are defendant Nos.2, 3, 5 to 10, 1st
respondent herein is plaintiff and respondent Nos.2 to 4 herein are defendant
Nos.1, 4 and 11 in O.S.No.689 of 2005, on the file of I Additional Junior Civil
Judge, Eluru.
It is to be here that the appellant Nos.2, 6 and 7 herein died during the
pendency of this appeal and their legal representatives are brought on record
as appellant Nos.9 to 14; 15 and 16 & 17 respectively.
3. The plaintiff initiated action in O.S.No.689 of 2005, on the file of I
Additional Junior Civil Judge, Eluru, with a prayer for declaring the title of the
plaintiff to the schedule property as lawful owner and for consequential
permanent injunction restraining the dependents, their men and followers from
interfering with the peaceful possession and enjoyment of the plaint schedule
land and for costs.
4. The learned I Additional Junior Civil Judge, Eluru, dismissed the suit
without costs. Felt aggrieved of the same, the unsuccessful plaintiff in the
above said suit filed A.S.No.278 of 2010, on the file of the Principal District
Judge, West Godavari at Eluru. The learned Principal District Judge, West
Godavari at Eluru, allowed the appeal by decreeing the suit in favour of
plaintiff. Aggrieved thereby, the defendant Nos.2, 3, 5 to 10 approached this
Court by way of second appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in
O.S.No.689 of 2005, is as follows:
The plaint schedule property originally belonged to Adivi Venkata
Lakshmamma. She executed a Will on 12.06.1975 bequeathing the same in
favour of Adivi Saraswathi in a sound and disposing state of mind and later
she died. After the death of Adivi Venkata Lakshmamma, Adivi Saraswathi
became the absolute owner of the plaint schedule property. Adivi Saraswathi
took loan from State Bank of India, Vijayarai by mortgaging the plaint schedule
property. Adivi Saraswathi died intestate on 12.04.2004 leaving behind her,
her husband and children. After the death of Saraswathi, her husband and
children succeeded the plaint schedule property and they sold the same to
plaintiff under a registered sale deed, dated 13.12.2004 for clearing the loan
due to State Bank of India, Vijayarai and delivered possession of the same to
the plaintiff. Since the date of the said purchase, the plaintiff has been in
possession and enjoyment of the plaint schedule property.
7. The 3rd defendant filed written statement before the trial Court and
the same was adopted by the defendant Nos.1, 2, 4 to 11. The brief
averments in the written statement are as follows:
The plaint schedule property was leased out to 1st defendant and 8th
defendant and others for 99 years by virtue of a registered sale deed, dated
24.08.1967 with such terms and conditions as mentioned therein. The tenants
have been in possession and enjoyment of the plaint schedule property since
then by way of getting bore-well dug. The alienation of the plaint schedule
property in favour of plaintiff is contrary to the provisions of Section 15(1) of
A.P.(A.A.) Tenancy Act, 1956. Defendant Nos.3 and 5 are the sons of 1 st
defendant. Defendant Nos.7, 10 and 11 are the sons of some of the original
tenants as detailed in it. The scribe of the above registered leased deed,
dated 24.08.1967 by name Adivi Soma Sundara Rao is the son of Adivi
Venkata Lakshmamma and he is a close associate of the plaintiff. They
colluded together and brought the document of plaintiff into existence.
8. On the basis of above pleadings, the learned I Additional Junior Civil
Judge, Eluru, framed the following issues for trial:
(1) Whether the plaintiff is entitled for declaration as he is lawful
owner of the plaint schedule property?
(2) Whether the plaintiff is entitled for consequential permanent
injunction as prayed for?
(3) To what relief?
9. During the course of trial in the trial Court, on behalf of the plaintiff,
P.W.1 to P.W.4 were examined and Exs.A.1 to A.10 were marked. On behalf
of the defendants, D.W.1 to D.W.6 were examined and Ex.B.1 to Ex.B.7 were
marked.
10. The learned I Additional Junior Civil Judge, Eluru, after conclusion
of trial, on hearing the arguments of both sides and on consideration of oral
and documentary evidence on record, dismissed the suit without costs. Felt
aggrieved thereby, the unsuccessful plaintiff filed the appeal suit in
A.S.No.278 of 2010, on the file of the Principal District Judge, West Godavari
at Eluru, wherein, the following point came up for consideration:
1) Whether the plaintiff is entitled to have declaration and the
consequential relief of permanent injunction with respect to the
plaint schedule property as prayed for? and
2) Whether the judgment and decree, dated 04.08.2010 passed by
the learned I Additional Junior Civil Judge, Eluru in O.S.No.689 of
2005 is liable to be set aside?
11. The learned Principal District Judge, West Godavari at Eluru i.e., the
first appellate Judge, after hearing the arguments, answered the points, as
above, against the defendants and allowed the appeal filed by the plaintiff by
decreeing the suit. Felt aggrieved of the same, the Nos.2, 3, 5 to 10 in
O.S.No.689 of 2005 filed the present second appeal before this Court.
12. On hearing both side counsels at the time of admission of the
appeal, on 27.06.2012, the composite High Court of Andhra Pradesh at
Hyderabad, framed the following substantial questions of law:
(1) Whether the admitted violation of provision of Section 15(1) of
A.P.(A.A.) Tenancy Act can be called a dispute within the meaning
of Section 16 of the Act and the tenant has to sought adjudication
under Section 16?
(2) Whether the non challenging of the violation of Section 15(1)
would prevent the tenants from objecting to the sale in the suit by
the purchaser?
(3) Whether in the absence of determination of tenancy or surrender
of lease the purchaser can maintain the suit?
(4) Whether the purchaser from the lessor can be granted
permanent injunction when his rights are subject to the Tenancy
Rights of the tenants?
13. Heard Sri Kambhampati Ramesh Babu, learned counsel for the
appellants and heard Sri M. Radhakrishna, learned counsel, representing Sri
E.V.V.S. Ravi Kumar, learned counsel for the 1st respondent.
14. Law is well settled that under Section 100 of CPC the High Court
cannot interfere with the findings of fact arrived at by the First Appellate Court
which is the final Court of facts except in such cases where such findings were
erroneous being contrary to the mandatory provisions of law, or its settled
position on the basis of the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence.
In a case of Bhagwan Sharma v. Bani Ghosh1, the Apex Court held
as follows:
―The High Court was certainly entitled to go into the question as to
whether the findings of fact recorded by the First Appellate Court which
was the final Court of fact were vitiated in the eye of law on account of
non-consideration of admissible evidence of vital nature.‖
In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar2, the
Apex Court held as follows:
―The High Court cannot substitute its opinion for the opinion of the First
Appellate Court unless it is found that the conclusions drawn by the
lower appellate Court were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was based upon
inadmissible evidence or arrived at without evidence.‖
15. The undisputed facts are that one Adivi Venkata Lakshmamma was
original owner of the plaint schedule property and she executed a Will on
12.06.1975 bequeathing the same in favour of Adivi Saraswathi in a sound
and disposing state of mind and later she died. After the death of Adivi
Venkata Lakshmamma, Adivi Saraswathi became the absolute owner of the
plaint schedule property and the same was not in dispute by either side. It is
also not in dispute that Adivi Saraswathi died intestate on 12.04.2004 leaving
behind her, her husband and children and the same is not in dispute by the
defendants. The ownership of the property in the plaint schedule was not in
dispute by the defendants. The contention of the appellants is that Adivi
Venkata Lakshmamma leased out the plaint schedule property to defendant
Nos.1, 8 and 9 and others for 99 years under a registered sale deed, dated
1
AIR 1993 SC 398
2
AIR 1999 SC 471
24.08.1967 and that the original tenants and sons of some of the original
tenants have been in possession and enjoyment of the same.
16. The plaintiff approached the Court for seeking relief of declaration of
title in respect of the plaint schedule property, therefore, the burden is heavily
casts on the plaintiff to prove his title in the plaint schedule property. The title
of the plaintiff is based on a registered sale deed, dated 13.12.2004 said to
have been executed by the husband and children of Adivi Saraswathi. The
certified copy of the sale deed is filed and got marked as Ex.A.8 through the
plaintiff. Original sale deed is deposited in State Bank of India, Vijayarai by
availing loan, the same was proved through the Branch Manager of State
Bank of India, Vijayarai i.e., P.W.2. The sale deed of the plaintiff and title of
the vendor of the plaintiff and the title of the plaintiff is not at all disputed by
the defendants.
17. It is trite law that in a suit for declaration of title, the burden
always lies on the plaintiff to make out and establish a clear case for
granting such a declaration and the weaknesses, if any, of the case set
up by the defendant would not be a ground to grant the relief of
declaration of title in favour of the plaintiff. The onus to prove title to the
schedule property in question was on the plaintiff. It was incumbent on
the part of the Court to record a finding on the claim of title to the suit
property, the Court is also bound to enquire or investigate that question
on first before going into any other question that may arise in a suit.
18. The evidence of P.W.1 goes to show that he purchased the plaint
schedule property under a registered sale deed, dated 13.12.2004 and he has
been in possession and enjoyment of the plaint schedule property and his
possession is recognized by the revenue authorities. The plaintiff relied on
Ex.A.1 to Ex.A.5. The evidence of P.W.1 coupled with Ex.A.1 to Ex.A.5 clearly
goes to show that the Tahsildar, Pedavegi issued a certificate on 12.03.2007
to show that the plaintiff has been in possession and enjoyment of the plaint
schedule property. Certificate, dated 05.02.2007 issued by the Branch
Manager, State Bank of India, Vijayarai which is got marked as Ex.A.2, clearly
goes to show that the plaintiff availed crop loan and long term loan by
mortgaging the plaint schedule property in the same bank. Ex.A.3, certificate
issued by the Assistant Engineer (Operation), Vijayarai clearly goes to show
that the bore-well was sanctioned to the plaintiff. Ex.A.4 and Ex.A.5 Adangals
also proves the possession of the plaintiff in respect of plaint schedule
property.
19. In order to discharge his burden, the plaintiff examined the Branch
Manager, State Bank of India, Vijayarai as P.W.2. P.W.2 deposed about
availing of loan by the plaintiff and also deposit of original documents by the
plaintiff in the State Bank of India by the date of obtaining loan. The evidence
of P.W.2 clearly goes to show that the documents covered under Ex.A.2 i.e.,
original title deed of the plaintiff and other relevant documents are in the
custody of the State Bank of India and plaintiff also availed loan from the State
Bank of India by depositing documents. His evidence also clearly goes to
show that one Adivi Saraswathi obtained loan on the same property and
plaintiff cleared the said loan. The original documents Ex.A.6-title deed and
Ex.A.7-pattadar passbook and original of Ex.A.8 sale deed and No.3 Adangal
and 10(1) Adangal are produced through P.W.2 and the same were compared
with Ex.A.1 to Ex.A.9. The plaintiff has taken a minute care of summoning the
Branch Manager of the State Bank of India, Vijayarai and also examined as
P.W.2. The survey number and name of the title-holder and extent were
specifically recorded in revenue documents. In cross-examination, the
evidence of P.W.2 is not at all shattered on the material aspects of the case.
The plaintiff also to discharge his burden examined another two witnesses as
P.W.3 and P.W.4. The evidence of P.W.3 and P.W.4 i.e., the third parties to
the suit proceedings clearly and clinchingly proves the possession of the
plaintiff in the plaint schedule property.
20. Learned counsel for the 1st respondent would contend that original
lease deed is not produced and Ex.B.1 document is Photostat copy. He would
further contend that when the party produced original document of 30 years
old, then only the presumption under Section 90 of the Indian Evidence Act,
1872 would arise. Admittedly, defendant Nos.1, 8 and 9 on whose behalf the
lease deed was executed apart from other lessees did not enter into the
witness box. Ex.B.1 is registration extract of the lease deed, the same is
marked through D.W.1 i.e., the 3rd defendant. In cross examination, D.W.1
admits that the schedule property belongs to Adivi Venkata Lakshmamma and
he has not taken the said property for lease and he was not present at the
time of execution of lease deed. Another admission made by D.W.1 in his
evidence in cross examination is that they purchased property from
Mahalakshsmma, but he got registered as lease. Therefore, he is not having
any personal knowledge about Ex.B.1. One of the attestors in Ex.B.1 is
examined as D.W.5. In cross examination he admits he does not know about
the execution of Will by Venkata Lakshmamma in favour of Saraswathi and he
also does not know the government issued pattadar passbook and title deed
in favour of Saraswathi. Another admission made by D.W.5 that he does not
know all the parties to Ex.B.1 are alive or not and he is not having any
knowledge about the purchase of property by the plaintiff.
21. Learned counsel for the 1st respondent would contend that though
some of the lessees are the parties to the suit, the defendants did not examine
lessees as witnesses and the alleged registration extract of lease deed is not
marked through the lessees, who are the parties to the suit and original was
not produced by the defendants. Certified copy of the registered lease deed is
only produced and it was marked through the son of one of the lessees,
though lessee is alive and lessee is a party to the suit proceedings and the
said lessee is 1st defendant in the suit proceedings but the defendants did not
choose to examine him. It is not the case of the defendants that they lost the
original of Ex.B.1 and Ex.B.1 was marked through D.W.1. The lessees i.e.,
defendant Nos.1, 8 and 9 are alive till the date of disposal of the suit and they
contested the suit proceedings but the defendants failed to examine them as
witnesses, Ex.B.1 is not at all produced from proper custody.
22. Learned counsel for the appellants placed a reliance of this Court in
Bommineni Venkatamma and others vs. P. Gangamma and others 3 ,
wherein this Court held as follows:
It is in this regard one requires to notice Section 57(5) of the Registration
Act, 1908, which reads as below:--
"57. Registering officers to allow inspection of certain books and
indexes, and to give certified copies of entries:--
(1) .............
(2) ............
(3) ............
(4) ............
(5) All copies given under this section shall be signed and sealed by the
registering officer, and shall be admissible for the purpose of proving
the contents of the original documents.‖
One also shall notice Section 79 of the Indian Evidence Act, 1872, which
reads as below:--
―79. Presumption as to genuineness of certified copies:- The Court
shall presume to be genuine every document purporting to be a
certificate, certified copy or other document, which is by Law declared to
be admissible as evidence of any particular fact, and which purports to
be duly certified by any officer of the Central Government or of a State
Government, or by any officer in the State of Jammu and Kashmir who is
duly authorized thereto by the Central Government:
Provided that such document is substantially in the form and purports
to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such
document purports to be signed or certified, held, when he signed it, the
official character which he claims in such paper.‖
3
2024 SCC OnLine AP 1475
The facts in the aforesaid case law is the original was not produced, but
certified copy of the document was produced. The contention of the plaintiff in
the above case was that they lost the original and therefore they had to file
only certified copy of document. Law is very clear for availing the provision
under Section 90 of the Evidence Act, the original has to be produced or if the
original of 30 years document is lost, a foundation has to be laid for admission
of secondary evidence under Section 63 of the Act by producing proof of loss
of document or destruction of original and copy of which 30 years old
document is also supposed to be produced from proper custody. Learned
counsel for the appellants brought to the notice of this Court that Ex.B.1 is
marked through D.W.1. D.W.1 is no other than the son of 1st defendant and 1st
defendant is one of the lessees. It has to be observed that during the
pendency of the suit and during the pendency of the 1st appeal, the 1st
defendant was alive and the other lessees i.e., defendant Nos.8 and 9 are
also alive till the disposal of the suit, but the appellants did not make any
venture to exhibit the registration extract of lease deed either through 1st
defendant or through 8th defendant or 9th defendant. Admittedly, Ex.B.1
marked through D.W.1 who was not party to the suit. As stated supra, as per
his admissions, he has not taken the said property for lease and he was not
present at the time of execution of lease deed and another admission made
by him is that though they purchased the property from Mahalakshmamma, he
has got registered the document as a lease deed. It is quite interesting to note
that D.W.1 himself admitted in his cross examination that they purchased the
property, but only they got registered a document as a lease. It clearly goes to
show that D.W.1 is not having any personal knowledge about Ex.B.1,
therefore, Ex.B.1 was not properly proved.
23. In a case of Lakhi Baruah and others vs. Padma Kanta Kalita
and others4 , the Apex Court held as follows:
4
(1996) 8 Supreme Court Cases 357
―It was indicated that in view of the clear language of Section 90 the
production of the particular document would be necessary for applying
the statutory presumption under Section 90. If the document produced
was a copy admitted under Section 65 as secondary evidence and it was
produced from proper custody and was over thirty years old, then the
signature authenticating the copy might be presumed to be genuine; but
production of the copy was not sufficient to justify the presumption of due
execution of the original under Section 90. In this connection, reference
may be made to the decisions in Seethayya v. Subramanya Somayajulu5
and Basant Singh v. Brij Raj Sarn Singh6. In view of these Privy Council
decisions, disproving the applicability of presumption under Section 90 to
the copy or the certified copy of an old document, in the subsequent
decisions of the High Courts, it has been consistently held by different
High Courts that production of a copy or a certified copy does not raise
the presumption under Section 90.‖
The Apex Court further held as follows:
―The position since the aforesaid Privy Council decisions being followed
by later decisions of different High Courts, is that presumption under
Section 90 does not apply to a copy or a certified copy even though thirty
years old; but if ia foundation is laid for the admission of secondary
evidence under Section 63 of the Evidence Act,1872 by proof of loss or
destruction of the original and the copy which is thirty years old is
produced from proper custody, then only the signature authenticating the
copy may under Section 90 be presumed to be genuine.‖
In a case of The Roman Catholic Mission vs. The State of Madras
and another7, the Constitution Bench of the Apex Court held as follows:
―In reaching the conclusion that both warams were included, the District
Judge took into consideration certified copies of certain leases from the
5
AIR 1929 PC 11
6
AIR 1935 PC 132
7
AIR 1966 Supreme Court 1457
record of an old case O. S. No. 124 of 1944 of the Court of Subordinate
Judge, Madurai. These documents are Exts. B-4, 5, 6 and A- 68, 69 and
77. Ex. B-4 is a karalnama (agreement) executed for the fasli years 1348
and 1349 by which the lessees undertook to hand over 1/3 share of the
produce as melwaram and to retain 2/3 share as kudiwaram from the
lands leased out of Keelapappapathu. Ex. B-5 is another lease for
cultivating, the whole of Keelapappapathu Nanja (wet) lands. Ex. B-6 is a
muchilika in respect of nanja lands in Keelapappapathu by which lessee
undertook to pay half produce as melwaram and to retain the other half
as kudiwaram. These documents undoubtedly would have thrown light
upon the matter but they were not admissible because they were only
copies. The originals were not produced at any time nor was any
foundation laid for the establishment of the right to give secondary
evidence.‖
In a case of Iqbal Basith and others vs. N. Subbalakshmi and
others8, the Full Bench of the Apex Court held as follows:
This Court in Lakhi Baruah vs. Padma Kanta Kalita, (1996) 8 SCC 357,
with regard to admissibility in evidence of thirty years old documents
produced from proper custody observed as follows : (SCC p.362, paras
14-15)
―14. It will be appropriate to refer to Section 90 of the Evidence Act, 1872
which is set out hereunder:
"90. Presumption as to documents thirty years old.-- Where
any document, purporting or proved to be thirty years old, is produced
from any custody which the Court in the particular case considers proper,
the Court may presume that the signature and every other part of such
document, which purports to be in the handwriting of any particular
person, is in that person's handwriting, and, in the case of a document
executed or attested, that it was duly executed and attested by the
persons by whom it purports to be executed and attested.‖
8
(2021) 2 Supreme Court Cases 718
15. Section 90 of the Evidence Act, 1872 is founded on necessity and
convenience because it is extremely difficult and sometimes not possible
to lead evidence to prove handwriting, signature or execution of old
documents after lapse of thirty years. In order to obviate such difficulties
or improbabilities to prove execution of an old document, Section 90 has
been incorporated in the Evidence, Act, 1872 which does away with the
strict rule of proof of private documents. Presumption of genuineness
may be raised if the documents in question is produced from proper
custody. It is, however, the discretion of the court to accept the
presumption flowing from Section 90. There is, however, no manner of
doubt that judicial discretion under Section 90 should not be exercised
arbitrarily and not being informed by reasons.‖
In the case on hand, no doubt the plaintiff approached the trial Court for
seeking relief of declaration of title based on the registered sale deed. The
sale deed is not at all in dispute by the defendants. It is a specific case of the
appellants that they are the tenants of the vendor of the plaintiff and they are
claiming lease hold rights under original of Ex.B.1. Admittedly, original of
Ex.B.1 was not produced from proper custody. It is not the case of the
appellants that they have lost the original of Ex.B.1, though lessees are alive
who are the defendant Nos.1, 8 and 9 in the suit proceedings, the said Ex.B.1
certified copy of the document is not marked through the lessees. Ex.B.1 is
marked through D.W.1. As stated supra, D.W.1 is not having personal
knowledge as per his own admissions in his evidence itself. Therefore, Section
90 of the Act is not at all applicable because Ex.B.1 was not produced from
proper custody.
For all the aforesaid reasons, I am of the considered view that Ex.B.1 is
not properly proved.
24. As seen from the material on record, the plaintiff's title is based on
Ex.A.1 sale deed, the same is not at all in dispute. The registered sale deed
under Ex.A.8 is not at all in dispute so far as the alleged lease in between the
defendants and Vakata Lakshmamma, the contention of the plaintiff is that he
has no knowledge about the alleged lease deed.
Section 15(1) of A.P. (AA) Tenancy Act, 1956 reads as follows:
15. (Cultivating tenant's right to first purchase the land leased to
him (Substituted by Section 10 of Act No.39 of 1974):--
(1) Any landlord intending to sell the land leased to a cultivating tenant
shall first give notice to such cultivating tenant, of his intention to sell
such land, and requiring him to exercise his option to purchase the land.
The particulars to be specified in the notice and the time within which the
option shall be exercised by cultivating tenant shall be such as may be
prescribed.
It is undisputed fact that vendors have not given any notice to the
defendants by intending to sell the property leased out, the vendors have to
give notice in first to the tenants informing about their intention to sell such
landed property and by mentioning the facts to the lessees by way of notice.
Section 15(6) of A.P. (AA) Tenancy Act, 1956 reads as follows:
(6) Any sale of the land by the landlord in cultivating of this section shall
be voidable to the option of the cultivating tenant.
Admittedly, in the case on hand, no notice is given by the lessor to the
lessees i.e., cultivating tenants under Ex.B.1, therefore, by virtue of Section
15(6) of A.P. (AA) Tenancy Act, the sale is voidable to the option of cultivating
tenants.
25. In a case of Prem Singh and others vs. Birbal and others 9 ,
wherein the Apex Court held as follows:
9
(2006) 5 Supreme Court Cases 353
―When a document is valid, no question arises of its cancellation. When
a document is void ab initio, a decree for setting aside the same would
not be necessary as the same is non est in the eye of law, as it would be
a nullity. Section 31 of the Specific Relief Act, 1963 refers to both void
and voidable documents. It provides for a discretionary relief.‖
In the case on hand, admittedly the appellants have not initiated any
proceedings U/Sec.16 of A.P. (AA) Tenancy Act to question the sale deed and
to question the sale deed, they have asked the relief of declaration that the
sale deed is not valid. It is made it clear that if the sale deed is valid document,
question of cancellation does not arise. If it is voidable document to the option
of the cultivating tenant, the tenant has to question the sale deed under
Section 16 of the Act. In the case on hand, the appellants have not questioned
the said sale deed under Section 16 of the Act. The fact remains that the
appellants have not questioned the sale deed within 3 years from the date of
knowledge. The appellants also have not initiated any action under Section 16
of the Act.
26. Learned counsel for the appellants placed a reliance of Atukuri
Namonarayana vs. Uppuluri Naramma10.
The 3rd defendant reiterated in the written statement as follows:
The 3rd defendant and 5th defendant are the sons of 1st defendant.
There are three sons including the 7th defendant are the sons of
deceased original lessee Kalathoti Ramayya. There are three sons
including 10th defendant to another original lessee - deceased
Geddam China Pentayya and there are three sons including 11th
defendant to another original lessee Pitta Nagabhushanam.
Accordingly, three original lessees along with other defendants
except the 9th defendant have been in peaceful possession and
enjoyment of the plaint schedule property till today as cultivating
10
1975(1) ALT 172 (D.B.)
tenants. According to the appellants some of the lessees are no
more and original lessor was died.
27. In a case of Rajulagari Ellamma and others vs. Sri Pedda
Jeeyangar Mutt, Tirupati11, the composite High Court of Andhra Pradesh at
Hyderabad held as follows:
―Section 12 of the Andhra Tenancy Act 1956, amended by amendment
Act 39/74 which came into force with effect from 11-7-1980, provides that
if the cultivating tenant dies, his widow and his legal heirs shall have the
option to continue the tenancy for the unexpired portion of the lease on
the same terms and conditions under which the deceased cultivating
tenant was holding, and such option shall be exercised by serving a
notice in writing on the landlord within a period of three months from the
date of demise of such cultivating tenant. Except making such
allegations during the course of his evidence, there is no material put
forward by defendants to show that the sons of R. Krishna Reddy had in
fact exercised such option by issuing notice or presenting the application
to the landlord. Therefore, the lower court rightly came to the conclusion
that the defendants did not comply with the provisions of Section 12 of
the Andhra Tenancy Act by exercising their option to continue 40 the
tenancy rights by serving the required notice upon the landlord.‖
The composite High Court of Andhra Pradesh at Hyderabad further held
as follows:
With regard to the mode of service of notice as contemplated under
Section 12 of Andhra Tenancy Act and failure of the Legal
Representatives of the deceased tenant to exercise such option
regarding their tenancy rights, the lower Court has referred to the earlier
decisions of this Court which are sought to be relied upon by the
respondent in the present appeal also. In the decision reported in
"Kallam Jampa Reddy v. Yarava Krishna Reddy 1979 (2) ALT 258 =
11
1996 (4) ALT 847
1979 (2) An.W.R. 241, similar point was raised before the Division Bench
of this Court under The Andhra Tenancy Act prior to its amendment
effected by amendment Act 39/74 which came into force with effect from
1-7-1980. It is observed by the Division Bench of this Court in the said
decision that the option as contemplated in Section 12 of Andhra
Tenancy Act has to be exercised by serving the notice in writing and that
in view of such specific provision of Section 12, it is not relevant to
consider whether the defendant in that suit had made any real request
for exercising such option.
In the case on hand, the notice as contemplated under Section 12 of the
A.P. (AA) Tenancy Act has not been issued by the legal representatives of the
lessees by serving notice in writing and they failed to serve the notice to
lessor. Therefore, the appellants failed to exercise the option by serving the
required notice to the landlord as contemplated under Section 12 of the Act.
Therefore, the appellants cannot be considered as cultivating tenants after
expiry of three months subsequent to the death of some of the lessees.
28. Ex.A.8 goes to show that possession was delivered to the plaintiff on
the date of sale deed itself. The documentary evidence goes to show that the
plaintiff has been in possession and enjoyment over the plaint schedule
property by the date of filing of the suit. The defendants relied on Ex.B.5 and
Ex.B.7. Those Ex.B.5 and Ex.B.7 proceedings are issued during the pendency
of the suit. Therefore, no reliance has to be given to Ex.B.5 and Ex.B.7 and no
importance will be given to Ex.B.5 and Ex.B.7 documents. Though the
appellants relied on Ex.B.3 and Ex.B.4 electricity demand notices and receipts
alleged to have been issued, those documents does not reveal that those are
related to the suit schedule property. The plaintiff also proved by way of
documentary evidence to show that he is in possession and enjoyment of the
plaint schedule property and he also proved that he came into possession of
the plaint schedule property by virtue of a registered sale deed executed by
the legal heirs of Saraswathi. As stated supra, the said sale deed is not yet
cancelled within three years from the date of knowledge by the appellants.
Therefore, I do not find any illegality in the decree and judgment passed by the
learned First Appellate Judge and the decree and judgment of the learned
First Appellant Judge is perfectly sustainable under law and it requires no
interference. Therefore, the second appeal is liable to be dismissed.
29. In the result, the second appeal is dismissed confirming the
Judgment and decree, dated 07.12.2011 in A.S.No.278 of 2010, on the file of
the Principal District Judge, West Godavari at Eluru. Each party do bear their
own costs in the second appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
__________________________
V. GOPALA KRISHNA RAO, J.
DT.28.01.2025.
PGR