A.P.(A.A.) Tenancy Act sec.16,18 - Or. 6, rule 4 C.P.C. - absence of landlord tenant relationship - fraud /coercion not maintainable with our proper pleadings - admittedly it is garden land - Revision court has got limited jurisdiction - High court dismissed the revision =
1) Whether the petitioners are cultivating tenants in the schedule lands, if so,
whether they are entitled for declaration under Section 16 of the Act;
2) Whether they are entitled for consequential relief of perpetual injunction.
The trial Court dismissed A.T.C.No.22 of 1993, A.T.C.No.23 of 1993 and
A.T.C.No.45 of 1997 respectively on the ground that the petitioners failed to
establish that there is landlord and tenant relationship between the petitioners
and the respondents and there is no useful information elicited from the
evidence of the respondents witnesses to prove that there is landlord and tenant
relationship and that mere possession of the property recently by the
petitioners does not give any right to claim the petitioners as tenants and that
the petitioners, who are legal heirs of Kamisetti Subbanna and Venkata Rao,
cannot get any tenancy rights over the schedule lands.
Pleading of Fraud /Coercion =
In A.C. Ananthaswamy and others v. Boraiah21, the Apex Court held as
under:
".......To prove fraud, it must be proved that representation made was false to
the knowledge of the party making such representation or that the party could
have no reasonable belief that it was true. The level of proof required in such
cases is extremely higher. An ambiguous statement cannot per se make the
representor guilty of fraud. To prove a case of fraud, it must be proved that
the representation made was false to the knowledge of the party making such
representation. ...."
In Bijendra Nath Srivastava v. Mayank Srivastava and others23, the Apex
Court held as follows:
"........ This is in consonance with the rule that a charge of fraud must be
substantially proved as laid and that when one kind of fraud is charged, another
kind of fraud cannot, upon the failure of proof, be substituted for it. The
same is true for the charge of misconduct. This means under Order 6 Rule 4 CPC
particulars have to be furnished of the plea of fraud or misconduct raised in
accordance with Order 6 Rule 2 CPC and it is not permissible to introduce by way
of particulars a plea of fraud or misconduct other than that raised in the
pleadings......"
Scope of Revision court
In Essen Deinki v. Rajiv Kumar25, the Apex Court held as follows:
"......It is merely a revisional jurisdiction and does not confer an unlimited
authority or prerogative to correct all orders or even wrong decisions made
within the limits of the jurisdiction of the courts below. the finding of fact
being within the domain of the inferior tribunal, except where it is a perverse
recording thereof or not based on any material whatsoever resulting in manifest
injustice, interference under the article is not called for.
..... Needless to record that there is total unanimity of judicial precedents on
the score that error must be that of law and patently on record committed by the
inferior tribunal so as to warrant intervention-it ought not to act as a court
of appeal and there is no dissension or even a contra-note being sounded at any
point of time till date. Incidentally, the illegality, if there be any, in an
order of an inferior tribunal, it would however be a plain exercise of
jurisdiction under the article to correct the same as otherwise the law courts
would fail to subserve the needs of the society since illegality cannot even be
countenanced under any circumstances....."
27. In view of the aforesaid discussion, it is to be seen that the revisional
jurisdiction does not confer an unlimited authority or prerogative to correct
all orders or even wrong decisions within the limits of jurisdiction of the
courts below. The finding of fact is within the domain of the inferior
tribunal, except where it is a perverse recording thereof or not based on any
material whatsoever resulting in manifest injustice, interference under Article
227 of the Constitution of India is not called for. As such, I do not find any
infirmity or error in the orders passed by the Courts below warranting
interference of this Court by exercising the restricted revisional jurisdiction
under Article 227 of the Constitution of India. Therefore, the Civil Revision
Petitions are liable to be dismissed.
Accordingly, the Civil Revision Petitions are dismissed. No costs.
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
C.R.P.Nos.2628 of 2006 and batch
dated:11-10-2013
Kamisetti Krishna and 11 others.... Petitioners
Kanchumarthi Venkata Ramanamma and 5 others.... Respondents
C.R.P.No.2650 of 2006
Counsel for Petitioners: Sri N. Vijay
Counsel for Respondents: Sri P. Venugopal
<Gist:
>Head Note:
?Cases referred:
1. AIR 1954 Travencore-Cochin 152
2. 1961 Calcutta 359
3. 1966 ALD 280
4. AIR 1940 Patna 683
5. AIR 2007 AP 137
6. AIR 1959 AP 272
7. AIR 1954 SC 355
8. AIR 1967 Supreme Court 341
9. (2004) 8 Supreme Court Cases 588
10. 2010 (5) Supreme Court Cases 104
11. 2008 (15) Supreme Court Cases 673
12. 1994 (6) Supreme Court Cases 117
13. 2005 (4) Andhra Law Times 235
14. 2002 (8) Supreme Court Cases 400
15. AIR 1954 Travancore-Cochin 152
16. AIR 1961 Calcutta 359
17. 1966 Andhra Law Times 280
18. AIR 1940 Patna 683
19. AIR 1954 Supreme Court 355
20. AIR 1967 Supreme Court 341
21. (2004) 8 Supreme Court Cases 588
22. (2010) 5 Supreme Court Cases 104
23. (1994) 6 Supreme Court Cases 117
24. 2005 (4) Andhra Law Times 235
25. (2002) 8 Supreme Court Cases 400
HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
Civil Revision Petition Nos.2628, 2650 and 6226 of 2006
Date: -10-2013
C.R.P.No.2628 of 2006
Between:
Kamisetti Krishna and 11 others
.. Petitioners
AND
Kanchumarthi Venkata Ramanamma and 5 others
.. Respondents
C.R.P.No.2650 of 2006
Between:
Kamisetti Subba Rao and 7 others
.. Petitioners
AND
Kanchumarthi Venkata Ramanamma and 5 others
.. Respondents
C.R.P.No.6227 of 2006
Between:
Nakka Venkata Rao
.. Petitioners
AND
Kanchumarthi Venkata Ramanamma and 5 others
.. Respondents
HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
Civil Revision Petition Nos.2628, 2650 and 6226 of 2006
COMMON ORDER:
Since common questions of fact and law are involved in these three Civil
Revision Petitions, they are being disposed of by this common order.
2. The C.R.P.No.2628 of 2006 is directed against the order dated
21-12-2005 in A.T.A.No.80 of 2000 passed by the Appellate Authority under the
A.P. (Andhra Area) Tenancy Act-cum-Principal District Judge, East Godavari at
Rajahmundry, whereby and whereunder the appeal was dismissed confirming the
order dated 24-05-2000 in A.T.C.No.22 of 1993 passed by the Special Officer
under Andhra Tenancy Act-cum-Principal Junior Civil Judge, Rajahmundry.
3. The C.R.P.No.2650 of 2006 is directed against the order dated
21-12-2005 in A.T.A.No.79 of 2000 passed by the Appellate Authority under the
A.P. (Andhra Area) Tenancy Act-cum-Principal District Judge, East Godavari at
Rajahmundry, whereby and whereunder the appeal was dismissed confirming the
order dated 24-05-2000 in A.T.C.No.23 of 1993 passed by the Special Officer
under Andhra Tenancy Act-cum-Principal Junior Civil Judge, Rajahmundry.
4. The C.R.P.No.6227 of 2006 is directed against the order dated
14-09-2006 in A.T.A.No.30 of 2005 passed by the Appellate Authority under the
A.P. (Andhra Area) Tenancy Act-cum-Principal District Judge, East Godavari at
Rajahmundry, whereby and whereunder the appeal was dismissed confirming the
order dated 15-06-2005 in A.T.C.No.45 of 1997 passed by the Special Officer
under Andhra Tenancy Act-cum-Principal Junior Civil Judge, Rajahmundry.
5. The brief facts, which are necessary for disposal of the revision
petitions, are that
the petition schedule lands originally belonged to
Kanchumarthi Seeta Ramachandra Rao, who is father of Pardhasaradhi, Venkata
Subba Rao and Venkata Seetharamarao, were leased out by late Sri Kandula
Narasimha Rao to the forefathers of the petitioners about 70 or 80 years back
for cultivation.
The forefathers and later the fathers of the petitioners
raised mango trees in the dry lands.
After the death of Kanchumarthi Seeta
Ramachandra Rao, his sons, Pardhasaradhi, Venkata Seetharama Rao and Venkata
Subba Rao inherited the schedule lands, which were managed by late
Pardhasaradhi.
Venkata Subba Rao died on 29-11-1984 and his 1/3rd share fell to
R-1 and R-2 by virtue of Will executed by him. Venkata Seetharamarao died on
03-12-1987 and his share was inherited by his adopted son Venkata Seetha
Ramachandra Rao- R-3.
During the life time of Pardhasaradhi, he used to realize
the rents from the forefathers and fathers of the petitioners and later on from
the petitioners.
After the death of Pardhasaradhi, the 1st respondent has been
collecting the rents from the petitioners and the petitioners have been raising
dry crops in dry lands in between mango trees and paddy crop in the wet lands.
The rent was enhanced from time to time for the last 5 years and the petitioners
have been paying the annual rent of Rs.14,000/-.
In the year 1990 some Mandal
Sattiah and others tried to occupy the schedule lands and other lands by force
and when the cultivating tenants expressed their apprehension that they could
not resist their force, the 1st respondent and some of the petitioners filed
O.S.No.168 of 1990 on the file of Subordinate Judge's Court, Rajahmundry for
permanent injunction, wherein the 1st respondent stated that the plaintiffs
therein and their forefathers have been in continuous possession and enjoyment
of the lands as cultivating tenants and the said lands were never under the
personal cultivation of the respondents or their predecessors-in-interest.
When
the petitioners approached the 1st respondent to pay the rent, she demanded for
enhancement of rent to Rs.25,000/- from 1992-1993 and refused to receive the
rent of Rs.14,000/-. Despite several approaches by the petitioners, the 1st
respondent was adamant. When the petitioners sent Rs.14,000/- by banker's
cheque dated 14-05-1993 in favour of the 1st respondent, she returned the same
with a registered notice dated 18-05-1993 with false allegations that the
petitioners are not tenants. The schedule lands are garden lands and they used
to sell the usufructs by way of remuneration and they used to pay 1/3rd of
realization to the watchman appointed by the husband and brothers of the 1st
respondent.
When the State Government tried to take the possession of the lands
as excess lands to be surrendered under the Land Ceiling Act, the 5th petitioner
and others filed LRA 133 of 1992 on the file of Land Reforms Appellate Tribunal,
Kakinada questioning the action of the Government in taking possession of the
lands under their cultivation and obtained stay order.
All the villagers of
Nidigatla Gadala and Madhurapudi are aware that the petitioners are cultivating
tenants to the schedule lands.
6. The 2nd respondent filed his counter stating that the petitioners are not
cultivating tenants to the schedule lands, which are garden lands. The
petitioners are not in possession of the schedule land at any time and there is
no landlady and tenant relationship between the respondents and the petitioners.
The payment of rent is false.
The petitioners and others played fraud on the
1st respondent in the absence of the 2nd respondent, who is managing and looking
after the sale of usufructs of the gardens in the schedule lands. The
petitioners procured her signatures on the plaint and other pleadings in
O.S.No168 of 1990. The pleadings in the said suit in the name of the 1st
respondent are not true, valid and binding on the respondents. The steps are
being taken to nullify the fraudulent proceedings. She further contended that
the 1st respondent never demanded for enhancement of rent. The respondents are
exclusively enjoying the schedule garden lands. The correspondence exchanged
between the petitioners and respondents show falsity of the petitioners' claim.
At no point of time, petitioners cultivated the schedule lands and raised crops.
The petition is not maintainable since all necessary parties are not impleaded
as respondents. This petition, if filed with malafide intention to give entry
into the lands of the respondents under the guise of injunction order.
7. The 3rd respondent also filed counter stating that as per preliminary
decree in O.S.No.189 of 1987 on the file of Subordinate Judge's Court,
Rajahmundry, the petition schedule lands and other lands are to be partitioned
in three equal shares and one such share to be added to this respondent and the
remaining two shares to the respondents 1 and 2.
In the said decree, it was
directed that the 2nd respondent to render account to this respondent for
Rs.6,283-29 ps. for the year 1985-96 and further directed the respondents 1 and
2 to render account for future profits i.e., from 1986-87 onwards.
The final
decree proceedings are pending in the above suit. This respondent is a minor.
His father Venkata Seetharama Rao died in 1987 from which time, the respondents
1 and 2 alone have been managing the petition schedule lands. The dispute in
question in this petition is in the personal knowledge of the respondents 1 and
2 and this respondent has no knowledge about the same. Subject to the rights of
this respondent in decree in O.S.No.189 of 1987 accounts of the income in the
schedule lands to be rendered by the respondents 1 and 2, this respondent abides
by the decision of the court.
8. The trial Court dismissed A.T.C.No.22 of 1993, A.T.C.No.23 of 1993 and
A.T.C.No.45 of 1997 respectively on the ground that the petitioners failed to
establish that there is landlord and tenant relationship between the petitioners
and the respondents and there is no useful information elicited from the
evidence of the respondents witnesses to prove that there is landlord and tenant
relationship and that mere possession of the property recently by the
petitioners does not give any right to claim the petitioners as tenants and that
the petitioners, who are legal heirs of Kamisetti Subbanna and Venkata Rao,
cannot get any tenancy rights over the schedule lands. Aggrieved by the common
order dated 24-05-2000 in A.T.C.No.22 of 1993 and A.T.C.No.23 of 1993, the
petitioners filed A.T.A.No.80 of 2000 and A.T.A.No.79 of 2000 respectively and
also aggrieved by the order dated 15-06-2005 passed in A.T.C.No.45 of 1997, the
revision petitioners herein filed A.T.A.No.30 of 2005 before the Appellate
Authority-cum-Principal District Judge, East Godavari District at Rajahmundry.
The Appellate Court dismissed the said appeals confirming the order of the
Special Officer under the Authority. Challenging the said orders, the present
Civil Revision Petitions have been filed.
9. Sri N. Vijay, learned counsel for the petitioners contended that the
Courts below have not properly considered the admissions made by the 1st
respondent, who is plaintiff in O.S.No.168 of 1990. He contends that the 1st
respondent, who is plaintiff in O.S.No.168 of 1990 clearly admitted that the
revision petitioners are the tenants in respect of suit schedule premises and
that when once the said admissions were made in the pleadings, the same have to
be taken into consideration and the same were also not retracted. As such, the
admissions have to be taken and the revision petitioners should have been
declared as permanent tenants under Section 6 of the Act. He also contends that
the evidence of PWs.5 and 6 V. Ramakrishna Bhaskara Rao and Nakka Kondala Rao
has not been considered properly. He contends that PW.6, who is plaintiff No.10
in O.S.No.168 of 1990, was not cross-examined and his chief examination goes
unchallenged, which can be the basis for declaring the revision petitioners as
tenants. He also contended that Venkat Rao who is plaintiff No.9 in O.S.No.168
of 1990 is not examined and that the two affidavits were marked as Exs.B.17 and
B.18 in spite of objections being raised. He also contended that evidence of
PW.7, who is petitioner No.1 in A.T.C.No.23 of 1993, was not properly
considered. He also contends that O.S.No.89 of 1996 filed R.5 against wife of
Venkata Rao is also dismissed. He also contended that ExB.17 could not have
been marked as N. Venkata Rao is not alive. He contends that the Appellate
Court has not considered other evidence except the effect of admissions in
O.S.No.168 of 1990. He also contended that as per the provisions under Order VI
Rule 4 CPC, the particulars regarding dates and other aspects have to be given,
but in the present case no such particulars are given. He also contends that in
the counter filed by the respondent-landlord, there is a bare denial and no
particulars about the fraud were given. Though plea of fraud is taken, there is
nothing stated in evidence about the fraud pleaded. He also contends that once
fraud is pleaded on one aspect, another fraud cannot be proved. In support of
his contentions, he placed reliance in judgments in Velu Pillai Padakalingam v.
Paramanandam Yesudasan1, A.E.G. Garapiet v. A.Y. Derderian2, The Commissioner,
Hindu Religious and Charital Endowments, Hyderabad3, Karnidan Sarda and another
v. Sailaja Kanta Mitra4, Peddavandla Narayanamma v. Peddasani Venkata Reddy and
others5, Jayalakshmidevamma v. Janardhan Reddy6, Nathoo Lal v. Durga Prasad7,
Basanth Singh v. Janki Singh and others8. In respect of the plea of fraud, he
placed reliance on A.C. Ananthaswamy and others v. Boraiah9, Shanti Budhiya
Vesta Patel and others10, Ranganayakamma and another v. K.S. Prakash and
others11 and Bijendranath Srivastava v. Mayank Srivastava and others12.
10. On the other hand, Sri P. Venugopal, learned counsel for the respondents,
contends that the petitioners are not cultivating tenants as per Section 2 (c)
of the A.P. (Andhra Area) Tenancy Act, 1956 and they are only intermediaries.
He contends that as the lands are only orchards, as per Section 18 (1) (b) of
the Act, the Act has no application to the petition schedule lands. He also
contends that the pleadings in petitions filed under Section 16 of the Act by
the petitioners are vague wherein at para-3 the revision petitioners stated that
mango trees are in existence and in para-5, they stated that there are dry crops
in the suit schedule lands. He contended that there are inconsistencies in the
pleadings. He contended that when once it is garden, as per Section 18 (1) (b)
of the Act, the Act has no application. He contended that no revenue records
are filed to prove the tenancy except giving some oral statements. He further
contended that as it is a case of tenants and the fathers and forefathers of the
revision petitioners are continuing as tenants, they should have filed some
revenue records to establish the same, but no such revenue record was filed. He
further contended that tenancy should be proved at least by producing revenue
records. In support of this contention, he relied on in Namburi Bangarraju v.
Indukuri Satyanarayanaraju and others13. He contends that the petitioners have
to establish their own case and not depend on the weakness of the respondents
even when the respondents have taken inconsistent in their pleadings. It is for
the petitioners to prove that they are cultivating tenants and there is no
clinching evidence to prove that the petitioners are tenants. He also contends
that proceedings in civil courts cannot be relied upon, while dealing with the
matters under special enactments. He further contended that the respondents
have clearly shown under what circumstances admissions were made in O.S.No.168
of 1990 and basing on such admissions, the revision petitioners cannot ask for
declaring them as tenants without leading any independent evidence. In what
circumstances O.S.No.168 of 1990 was filed was explained by the respondents and
both the Courts below accepted the same, and as such, no interference is called
for in this revision petitions. He contends that the revisional jurisdiction
under Article 227 of the Constitution of India can be exercised only for
correcting patent errors and evidence cannot be re-appreciated and came to a
different conclusion. He also contends that all errors cannot be corrected
under Article 227 of the Constitution of India as the revisional jurisdiction
under Article 227 is very limited. He relied on the judgment reported in Essen
Deinki v. Rajiv Kumar14.
11. On the other hand, in reply to the arguments of the learned counsel for
the respondents, the learned counsel for the revision petitioners contends that
there is no pleading as the land falls under Section 18 (1) (b) of the Act and
that Advocate Commissioner's report says that dry and wet crops form part of
suit schedule fields. He contended that when once the jurisdictional fact is
not pleaded, the same cannot be raised. He contends that after the pleadings,
the party should lead evidence only in respect of that pleadings but not
otherwise.
He also contends that the respondents have taken different stand at
different times and that in O.S.No.168 of 1990, the respondents have taken the
plea that the revision petitioners are tenants and in another suit filed, they
have taken plea that the revision petitioners are trespassers and in the present
proceedings, they have taken a plea that they are only watchman. He also
contends that the admission is best piece of evidence. Neither the evidence of
RW.1, RW.5 nor the evidence of RW.6 any way stated about the fraud.
12. In view of the rival contentions, the issues that fall for consideration
in this revision petition are,-
1) Whether the petitioners are cultivating tenants in the schedule lands, if so,
whether they are entitled for declaration under Section 16 of the Act;
2) Whether they are entitled for consequential relief of perpetual injunction.
13. The revision petitioners mainly relied on the admissions made by the 1st
respondent in the plaint in O.S.No.168 of 1990 on the file of Subordinate
Judge's Court, Rajahmundry. It was filed by the 1st respondent and the revision
petitioners against the third parties who occupied the lands of the respondents'
family. Ex.A.4 is the certified copy of plaint, which was filed in respect of
Ac.117.26 cents in Nidigatla village, Ac.14.08 cents in Gadala village and
Ac.6.30 cents in Madurapudi village of Korukonda Mandal. The said suit was
filed for permanent injunction restraining the defendants therein from
interfering with the plaintiffs' possession and enjoyment of the plaint schedule
properties. In the plaint, it was stated that the plaintiffs therein have been
in possession and cultivation of those lands by way of the 1st plaintiff, who is
1st respondent herein, leasing out the same to the other plaintiffs, who are
petitioners herein. The respondents have explained the admission and the
evidence of RW.1 show in what circumstances admissions were made and how it is
not binding. RW.1 deposed that except the 3rd petitioner, she does not know the
other petitioners and that she knows Subba Rao as watchman on salary basis and
that she never leased out the petition schedule property to the petitioners and
that the lands are not fit for cultivation. She says that about five or eight
years ago her watchman Subba Rao informed her that Nexalites high handedly were
trying to encroach into the schedule land, and at that time she was alone and
her daughter who is the 2nd respondent was in the States and that she told the
watchman to meet her advocate RW.6 and that the watchman brought some English
typed papers and ask her to sign those papers and that when she expressed that
she cannot understand or read English, Subba Rao informed her that the advocate
has signed those papers. She says that nobody read out the contents to her and
that she has signed in those papers and that she did not know contents of the
typed papers on which Subba Rao obtained her signatures and that after obtaining
her signatures Subba Rao took those papers to her advocate for filing case for
the purpose of preventing of Naxalites entering into the lands. She
categorically says that she did not instruct or inform her advocate RW.6 or any
other person that the petitioners are their tenants. She further says that
after the 2nd respondent returned from America, RW.1 informed her about Subba
Rao collecting her signatures on typed English papers on the pretext of
preventing Nexalites from entering into lands and that thereupon the 2nd
respondent enquired RW.6 and came to know about mentioning of the petitioners as
tenants in the schedule lands in those papers and that thereafter, she filed a
petition in the Civil Court stating that she did not voluntarily admit the
petitioners as tenants and also explaining circumstances in which she signed in
those papers. RW.1 says that she cannot read or write English and that she only
learnt signing in English. In cross-examination, she deposed that she does not
know whether her application to withdraw from the suit denying the contents of
the plaint, was dismissed.
14. RW.4 is the registered pleader's clerk under RW.6. He deposed that RW.1
did not come to their office for the purpose of filing O.S.No.168 of 1990 and
that her signatures were taken in the plaint at her house. He says that the 2nd
petitioner and two or three others of Kamisetti people went to RW.1's house and
obtained her signatures. He says that he also accompanied them and that neither
himself nor other persons read out contents of the plaint nor RW.1 read the
contents of the plaint. He says that the 2nd petitioner and others came, got
drafted the plaint and the suit was filed as out of order hurriedly and ad-
interim injunction order was obtained.
15. RW.6, who was a practicing advocate at Rajahmundry since 1958 and who was
the counsel for the 1st respondent's family in several litigations, deposed that
he drafted Ex.A.4-plaint in O.S.No.168 of 1990 on the instructions of three or
four plaintiffs out of plaintiffs 3 to 12 in the suit. He stated that RW.1, who
is plaintiff in O.S.No.168 of 1990, never gave any instructions in that matter
and that the 2nd respondent was giving instructions relating to their affairs
after the death of Partha Saradi. The 2nd respondent as RW.5 says that she was
out of India when the suit O.S.No.168 of 1990 was filed. RW.6 further states
that his clerk RW.4 went and obtained signatures of RW.1 in the plaint and that
as soon as the tenancy claim was made by the plaintiffs 2 to 13 and the same was
denied by the 1st plaintiff in that suit (RW.1), he reported no instructions for
the plaintiffs 2 to 13 and filed an application on behalf of the 1st plaintiff
to transpose plaintiffs 2 to 13 as defendants in that suit and that the said
application was dismissed advising separate steps have to be taken. He further
stated that he believed the version of those persons who gave instructions to
him for drafting Ex.A.4 plaint and drafted the same. RW.6 in his cross-
examination, he categorically says that he prepared the plaint in O.S.No.168 of
1990 without specific instructions of RW.1. He says that the relevant papers
were brought by three or four people out of the plaintiffs 3 to 13 in O.S.No.168
of 1990 and the said persons followed the 2nd respondent Subba Lakshmi to his
office and that Subba Lakshmi used to give instructions in some of the occasions
earlier to the said suit. He stated that because those persons accompanied
Subba Lakshmi on earlier occasion, RW.6 believed the representations of the
persons out of the other plaintiff in O.S.No.168 of 1990 and prepared Ex.A.4
plaint therein. The 1st respondent, apart from examining herself as RW.1,
examined her counsel RW.6 and pleader's clerk RW.4 to explain the circumstances
under which her signatures came on the plaint in O.S.No.168 of 1990. RW.6 who
is responsible advocate also deposed that Ex.A.4 was prepared without
instructions from RW.1. Both the Courts below have relied on evidence of RW.1,
4 and 6 and after assessing their evidence with reference to the attending
circumstances prevailing during the time of filing of O.S.No.168 of 1990, held
that in order to save those lands from the occupation of Raithu Cooli Sangham
backed by Naxalites, the 1st respondent and other petitioners joined together
and came forward with the theory of tenancy in favour of the plaintiffs 2 to 13
therein for the first time and hurriedly filed the plaint as out of order and
obtained ex parte interim injunction. The Courts below have examined those
admissions and found that they were made in those circumstances in order to
protect the lands from the third parties. The Courts below found that the said
solitary averment in Ex.A.4 cannot clothe the revision petitioners with any
tenancy rights in the petition schedule lands. The Courts below also found that
at no point of time the names of the petitioners were shown in the revenue
records or the land ceiling declarations and verification reports as tenants in
occupation and cultivation of the schedule lands and it is only for the first
time their names cropped up as tenants in the plaint filed in O.S.No.168 of
1990, which were made by the 1st respondent only under those circumstances. But
that cannot be taken advantage as admission for the purpose of coming to a
conclusion that the revision petitioners are tenants. Therefore, the Courts
below have not accepted the case of the respondents and observed that the said
admissions are made only in the circumstances prevailing and the same cannot be
used against the respondents. The Courts below also came to the conclusion that
the same is not binding on the 2nd respondent and the 3rd respondent, who are
not parties to Ex.A.4.
16. In the present case, the Courts below, considering the evidence of the
revision petitioners-PWs.1 to 7 and the evidence of RWs.1 to 7, came to the
conclusion that except the averment in Ex.A.4 that the revision petitioners are
tenants, no evidence is produced by the revision petitioners to show that they
are tenants and the evidence adduced by the revision petitioners also does not
support the case of the revision petitioners that they are permanent tenants.
Both the Courts below basing on the several judgments and by scrutinizing the
evidence held that the admissions made by the 1st respondent in the plaint in
O.S.No.168 of 1990-Ex.A.4 is not voluntary one and her signature on the plaint
and other documents in O.S.No.168 of 1990 were obtained when her daughter was
out of India and she was alone in the house. The Courts below also found that
the petitioners have to establish their case by independent evidence that there
is no landlord and tenant relationship between them and the respondents. The
Courts below, after appreciating the evidence found that the petitioners have
not established that there is landlord and tenant relationship and there is no
useful information elicited from the evidence of the respondents witnesses to
prove that there is landlord and tenant relationship to prove the said facts.
17. Learned counsel for the revision petitioners, in support of his contention
with regard to effect of non-examination of PW.6, relied on various precedents
in Velu Pillai Padakalingam v. Paramanandam Yesudasam15 A.E.G. Carapiet v. A.Y.
Derderian16, The Commissioner, Hindu Religious and Charitable Endowments,
Hyderabad v. Mudlamuri Ayyavurayya17, Karnidan Sarda and another v. Sailaja
Kanta Mitra18 to contend that since PW.6 was not cross-examined, the same should
be taken as unchallenged evidence. All the decisions state that any witness is
not cross-examined on any aspect by either side, his evidence goes unchallenged
and the same has to be believed. There is no quarrel regarding the said
principle. But, in the present case, except the oral evidence, no revenue
records were produced showing that the revision petitioners or the predecessors-
in-title or the ancestors are permanent tenants. As such, the evidence of PW.6
alone cannot be a ground to declare the revision petitioners as permanent
tenants. The Courts below have found that they have not adduced sufficient
evidence for declaring them as permanent tenants. That being a question of
fact, whether the evidence is sufficient or not cannot be a ground to reassess
or hold that the evidence is not sufficient by reappreciating the evidence in
these revisions.
18. In Nathoo Lal v. Durga Prasad19, the Supreme Court held that what is
admitted by a party to be true must be presumed to be true unless the contrary
is shown. But, in the present case, the admission made by the 1st respondent in
Ex.A.4 are clearly explained by leading evidence under what circumstances the
admissions were made and the Courts below found that the same can be held
against the respondents in view of the circumstances in which it was made. As
such, this decision has no application to the facts of the case.
19. In Basanth Singh v. Janki Sing and others20, the Apex Court held
that under Indian law, an admission made by a party in a plaint signed and
verified by him may be used as evidence against him in other suits. In other
suits, this admission cannot be regarded as conclusive, and it is open to the
party to show that it is not true. This decision supports the case of the
respondents since the respondents had let in evidence and shown that the
admission made by the 1st respondent in Ex.A.4 is not true and the same was
believed by the Courts below, which is a question of fact and the same cannot
also be interfered with in exercise of revisional jurisdiction by appreciating
the evidence.
20. In A.C. Ananthaswamy and others v. Boraiah21, the Apex Court held as
under:
".......To prove fraud, it must be proved that representation made was false to
the knowledge of the party making such representation or that the party could
have no reasonable belief that it was true. The level of proof required in such
cases is extremely higher. An ambiguous statement cannot per se make the
representor guilty of fraud. To prove a case of fraud, it must be proved that
the representation made was false to the knowledge of the party making such
representation. ...."
21. In the present case, the Courts below, on assessing the evidence of
the respondents, held that the admission was made under certain circumstances
and found the same to be not true. It is also a question of fact, which cannot
be interfered with. As such, the decision cited above also has no application
to the facts of the present case.
22. In Shanti Budhiya Vesta Patel and others v. Nirmala Jayaprakash
Tiwari and others22 , the Apex Court held as follows:
".... It is a plain and basic rule of pleadings that in order to make out a case
of fraud or coercion, there must be an express allegation of coercion or fraud,
and (b) all the material facts in support of such allegations must be laid out
in full and with a high degree of precision. In other words, if coercion or
fraud is alleged, it must be set out with full particulars....."
23. In the present case, the facts are different from the facts before the
Supreme Court. It is a case where under special circumstances, 1st respondent
signed Ex.A.4 and through the evidence, she proved that the admission made is
not true. As such, this decision has no application to the present case.
24. In Bijendra Nath Srivastava v. Mayank Srivastava and others23, the Apex
Court held as follows:
"........ This is in consonance with the rule that a charge of fraud must be
substantially proved as laid and that when one kind of fraud is charged, another
kind of fraud cannot, upon the failure of proof, be substituted for it. The
same is true for the charge of misconduct. This means under Order 6 Rule 4 CPC
particulars have to be furnished of the plea of fraud or misconduct raised in
accordance with Order 6 Rule 2 CPC and it is not permissible to introduce by way
of particulars a plea of fraud or misconduct other than that raised in the
pleadings......"
In view of the evidence led by the respondents in the present case, the Courts
below came to the conclusion that the admission made by the respondents is not
true and except the admission, there is no independent evidence or revenue
record to show that the petitioners are continuing as tenants. As such, this
decision has no application to the present case.
25. In Namburi Bangaraju v. Indukuri Satyanarayanaraju and others24, the Apex
Court held as follows:
"......The petition schedule property is situated in adjoining village where
revenue records are maintained meticulously. If really the land was under
possession of the petitioner and his father for the past half a century, it
would certainly have been reflected in one category of the revenue records or
the other. The petitioner did not file any such records. He tried to cover up
his lapse at the appellate stage by filing Ex.A.2, a certificate issued by the
Secretary, Gram Panchayat to the effect that the land is part of Gramakantam
(village site) and that the pattadar pass books are not issued for such land.
The appellate Court had examined the same and took the view that even if the
pattadar pass books cannot be issued for such land, there is no prohibition for
issuance of 10(1) account. A tenancy, to receive the protection under the Act
and exposing the landowners to severe disadvantage is required to be supported
either by written documents between the parties, or entries in the revenue
records. Mere oral assertion does not serve the purpose. The failure on the
part of the petitioner to file any such records establishes that he was not at
all in possession of the property, much less a tenant thereof.....
26. In Essen Deinki v. Rajiv Kumar25, the Apex Court held as follows:
"......It is merely a revisional jurisdiction and does not confer an unlimited
authority or prerogative to correct all orders or even wrong decisions made
within the limits of the jurisdiction of the courts below. the finding of fact
being within the domain of the inferior tribunal, except where it is a perverse
recording thereof or not based on any material whatsoever resulting in manifest
injustice, interference under the article is not called for.
..... Needless to record that there is total unanimity of judicial precedents on
the score that error must be that of law and patently on record committed by the
inferior tribunal so as to warrant intervention-it ought not to act as a court
of appeal and there is no dissension or even a contra-note being sounded at any
point of time till date. Incidentally, the illegality, if there be any, in an
order of an inferior tribunal, it would however be a plain exercise of
jurisdiction under the article to correct the same as otherwise the law courts
would fail to subserve the needs of the society since illegality cannot even be
countenanced under any circumstances....."
27. In view of the aforesaid discussion, it is to be seen that the revisional
jurisdiction does not confer an unlimited authority or prerogative to correct
all orders or even wrong decisions within the limits of jurisdiction of the
courts below. The finding of fact is within the domain of the inferior
tribunal, except where it is a perverse recording thereof or not based on any
material whatsoever resulting in manifest injustice, interference under Article
227 of the Constitution of India is not called for. As such, I do not find any
infirmity or error in the orders passed by the Courts below warranting
interference of this Court by exercising the restricted revisional jurisdiction
under Article 227 of the Constitution of India. Therefore, the Civil Revision
Petitions are liable to be dismissed.
Accordingly, the Civil Revision Petitions are dismissed. No costs.
As a sequel thereto, Miscellaneous Petitions, if any, pending shall stand
closed.
_____________________
A. RAJASHEKER REDDY, J
Date:11-10-2013
1) Whether the petitioners are cultivating tenants in the schedule lands, if so,
whether they are entitled for declaration under Section 16 of the Act;
2) Whether they are entitled for consequential relief of perpetual injunction.
The trial Court dismissed A.T.C.No.22 of 1993, A.T.C.No.23 of 1993 and
A.T.C.No.45 of 1997 respectively on the ground that the petitioners failed to
establish that there is landlord and tenant relationship between the petitioners
and the respondents and there is no useful information elicited from the
evidence of the respondents witnesses to prove that there is landlord and tenant
relationship and that mere possession of the property recently by the
petitioners does not give any right to claim the petitioners as tenants and that
the petitioners, who are legal heirs of Kamisetti Subbanna and Venkata Rao,
cannot get any tenancy rights over the schedule lands.
Pleading of Fraud /Coercion =
In A.C. Ananthaswamy and others v. Boraiah21, the Apex Court held as
under:
".......To prove fraud, it must be proved that representation made was false to
the knowledge of the party making such representation or that the party could
have no reasonable belief that it was true. The level of proof required in such
cases is extremely higher. An ambiguous statement cannot per se make the
representor guilty of fraud. To prove a case of fraud, it must be proved that
the representation made was false to the knowledge of the party making such
representation. ...."
Court held as follows:
"........ This is in consonance with the rule that a charge of fraud must be
substantially proved as laid and that when one kind of fraud is charged, another
kind of fraud cannot, upon the failure of proof, be substituted for it. The
same is true for the charge of misconduct. This means under Order 6 Rule 4 CPC
particulars have to be furnished of the plea of fraud or misconduct raised in
accordance with Order 6 Rule 2 CPC and it is not permissible to introduce by way
of particulars a plea of fraud or misconduct other than that raised in the
pleadings......"
Scope of Revision court
In Essen Deinki v. Rajiv Kumar25, the Apex Court held as follows:
"......It is merely a revisional jurisdiction and does not confer an unlimited
authority or prerogative to correct all orders or even wrong decisions made
within the limits of the jurisdiction of the courts below. the finding of fact
being within the domain of the inferior tribunal, except where it is a perverse
recording thereof or not based on any material whatsoever resulting in manifest
injustice, interference under the article is not called for.
..... Needless to record that there is total unanimity of judicial precedents on
the score that error must be that of law and patently on record committed by the
inferior tribunal so as to warrant intervention-it ought not to act as a court
of appeal and there is no dissension or even a contra-note being sounded at any
point of time till date. Incidentally, the illegality, if there be any, in an
order of an inferior tribunal, it would however be a plain exercise of
jurisdiction under the article to correct the same as otherwise the law courts
would fail to subserve the needs of the society since illegality cannot even be
countenanced under any circumstances....."
27. In view of the aforesaid discussion, it is to be seen that the revisional
jurisdiction does not confer an unlimited authority or prerogative to correct
all orders or even wrong decisions within the limits of jurisdiction of the
courts below. The finding of fact is within the domain of the inferior
tribunal, except where it is a perverse recording thereof or not based on any
material whatsoever resulting in manifest injustice, interference under Article
227 of the Constitution of India is not called for. As such, I do not find any
infirmity or error in the orders passed by the Courts below warranting
interference of this Court by exercising the restricted revisional jurisdiction
under Article 227 of the Constitution of India. Therefore, the Civil Revision
Petitions are liable to be dismissed.
Accordingly, the Civil Revision Petitions are dismissed. No costs.
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
C.R.P.Nos.2628 of 2006 and batch
dated:11-10-2013
Kamisetti Krishna and 11 others.... Petitioners
Kanchumarthi Venkata Ramanamma and 5 others.... Respondents
C.R.P.No.2650 of 2006
Counsel for Petitioners: Sri N. Vijay
Counsel for Respondents: Sri P. Venugopal
<Gist:
>Head Note:
?Cases referred:
1. AIR 1954 Travencore-Cochin 152
2. 1961 Calcutta 359
3. 1966 ALD 280
4. AIR 1940 Patna 683
5. AIR 2007 AP 137
6. AIR 1959 AP 272
7. AIR 1954 SC 355
8. AIR 1967 Supreme Court 341
9. (2004) 8 Supreme Court Cases 588
10. 2010 (5) Supreme Court Cases 104
11. 2008 (15) Supreme Court Cases 673
12. 1994 (6) Supreme Court Cases 117
13. 2005 (4) Andhra Law Times 235
14. 2002 (8) Supreme Court Cases 400
15. AIR 1954 Travancore-Cochin 152
16. AIR 1961 Calcutta 359
17. 1966 Andhra Law Times 280
18. AIR 1940 Patna 683
19. AIR 1954 Supreme Court 355
20. AIR 1967 Supreme Court 341
21. (2004) 8 Supreme Court Cases 588
22. (2010) 5 Supreme Court Cases 104
23. (1994) 6 Supreme Court Cases 117
24. 2005 (4) Andhra Law Times 235
25. (2002) 8 Supreme Court Cases 400
HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
Civil Revision Petition Nos.2628, 2650 and 6226 of 2006
Date: -10-2013
C.R.P.No.2628 of 2006
Between:
Kamisetti Krishna and 11 others
.. Petitioners
AND
Kanchumarthi Venkata Ramanamma and 5 others
.. Respondents
C.R.P.No.2650 of 2006
Between:
Kamisetti Subba Rao and 7 others
.. Petitioners
AND
Kanchumarthi Venkata Ramanamma and 5 others
.. Respondents
C.R.P.No.6227 of 2006
Between:
Nakka Venkata Rao
.. Petitioners
AND
Kanchumarthi Venkata Ramanamma and 5 others
.. Respondents
HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
Civil Revision Petition Nos.2628, 2650 and 6226 of 2006
COMMON ORDER:
Since common questions of fact and law are involved in these three Civil
Revision Petitions, they are being disposed of by this common order.
2. The C.R.P.No.2628 of 2006 is directed against the order dated
21-12-2005 in A.T.A.No.80 of 2000 passed by the Appellate Authority under the
A.P. (Andhra Area) Tenancy Act-cum-Principal District Judge, East Godavari at
Rajahmundry, whereby and whereunder the appeal was dismissed confirming the
order dated 24-05-2000 in A.T.C.No.22 of 1993 passed by the Special Officer
under Andhra Tenancy Act-cum-Principal Junior Civil Judge, Rajahmundry.
3. The C.R.P.No.2650 of 2006 is directed against the order dated
21-12-2005 in A.T.A.No.79 of 2000 passed by the Appellate Authority under the
A.P. (Andhra Area) Tenancy Act-cum-Principal District Judge, East Godavari at
Rajahmundry, whereby and whereunder the appeal was dismissed confirming the
order dated 24-05-2000 in A.T.C.No.23 of 1993 passed by the Special Officer
under Andhra Tenancy Act-cum-Principal Junior Civil Judge, Rajahmundry.
4. The C.R.P.No.6227 of 2006 is directed against the order dated
14-09-2006 in A.T.A.No.30 of 2005 passed by the Appellate Authority under the
A.P. (Andhra Area) Tenancy Act-cum-Principal District Judge, East Godavari at
Rajahmundry, whereby and whereunder the appeal was dismissed confirming the
order dated 15-06-2005 in A.T.C.No.45 of 1997 passed by the Special Officer
under Andhra Tenancy Act-cum-Principal Junior Civil Judge, Rajahmundry.
5. The brief facts, which are necessary for disposal of the revision
petitions, are that
the petition schedule lands originally belonged to
Kanchumarthi Seeta Ramachandra Rao, who is father of Pardhasaradhi, Venkata
Subba Rao and Venkata Seetharamarao, were leased out by late Sri Kandula
Narasimha Rao to the forefathers of the petitioners about 70 or 80 years back
for cultivation.
The forefathers and later the fathers of the petitioners
raised mango trees in the dry lands.
After the death of Kanchumarthi Seeta
Ramachandra Rao, his sons, Pardhasaradhi, Venkata Seetharama Rao and Venkata
Subba Rao inherited the schedule lands, which were managed by late
Pardhasaradhi.
Venkata Subba Rao died on 29-11-1984 and his 1/3rd share fell to
R-1 and R-2 by virtue of Will executed by him. Venkata Seetharamarao died on
03-12-1987 and his share was inherited by his adopted son Venkata Seetha
Ramachandra Rao- R-3.
During the life time of Pardhasaradhi, he used to realize
the rents from the forefathers and fathers of the petitioners and later on from
the petitioners.
After the death of Pardhasaradhi, the 1st respondent has been
collecting the rents from the petitioners and the petitioners have been raising
dry crops in dry lands in between mango trees and paddy crop in the wet lands.
The rent was enhanced from time to time for the last 5 years and the petitioners
have been paying the annual rent of Rs.14,000/-.
In the year 1990 some Mandal
Sattiah and others tried to occupy the schedule lands and other lands by force
and when the cultivating tenants expressed their apprehension that they could
not resist their force, the 1st respondent and some of the petitioners filed
O.S.No.168 of 1990 on the file of Subordinate Judge's Court, Rajahmundry for
permanent injunction, wherein the 1st respondent stated that the plaintiffs
therein and their forefathers have been in continuous possession and enjoyment
of the lands as cultivating tenants and the said lands were never under the
personal cultivation of the respondents or their predecessors-in-interest.
When
the petitioners approached the 1st respondent to pay the rent, she demanded for
enhancement of rent to Rs.25,000/- from 1992-1993 and refused to receive the
rent of Rs.14,000/-. Despite several approaches by the petitioners, the 1st
respondent was adamant. When the petitioners sent Rs.14,000/- by banker's
cheque dated 14-05-1993 in favour of the 1st respondent, she returned the same
with a registered notice dated 18-05-1993 with false allegations that the
petitioners are not tenants. The schedule lands are garden lands and they used
to sell the usufructs by way of remuneration and they used to pay 1/3rd of
realization to the watchman appointed by the husband and brothers of the 1st
respondent.
When the State Government tried to take the possession of the lands
as excess lands to be surrendered under the Land Ceiling Act, the 5th petitioner
and others filed LRA 133 of 1992 on the file of Land Reforms Appellate Tribunal,
Kakinada questioning the action of the Government in taking possession of the
lands under their cultivation and obtained stay order.
All the villagers of
Nidigatla Gadala and Madhurapudi are aware that the petitioners are cultivating
tenants to the schedule lands.
6. The 2nd respondent filed his counter stating that the petitioners are not
cultivating tenants to the schedule lands, which are garden lands. The
petitioners are not in possession of the schedule land at any time and there is
no landlady and tenant relationship between the respondents and the petitioners.
The payment of rent is false.
The petitioners and others played fraud on the
1st respondent in the absence of the 2nd respondent, who is managing and looking
after the sale of usufructs of the gardens in the schedule lands. The
petitioners procured her signatures on the plaint and other pleadings in
O.S.No168 of 1990. The pleadings in the said suit in the name of the 1st
respondent are not true, valid and binding on the respondents. The steps are
being taken to nullify the fraudulent proceedings. She further contended that
the 1st respondent never demanded for enhancement of rent. The respondents are
exclusively enjoying the schedule garden lands. The correspondence exchanged
between the petitioners and respondents show falsity of the petitioners' claim.
At no point of time, petitioners cultivated the schedule lands and raised crops.
The petition is not maintainable since all necessary parties are not impleaded
as respondents. This petition, if filed with malafide intention to give entry
into the lands of the respondents under the guise of injunction order.
7. The 3rd respondent also filed counter stating that as per preliminary
decree in O.S.No.189 of 1987 on the file of Subordinate Judge's Court,
Rajahmundry, the petition schedule lands and other lands are to be partitioned
in three equal shares and one such share to be added to this respondent and the
remaining two shares to the respondents 1 and 2.
In the said decree, it was
directed that the 2nd respondent to render account to this respondent for
Rs.6,283-29 ps. for the year 1985-96 and further directed the respondents 1 and
2 to render account for future profits i.e., from 1986-87 onwards.
The final
decree proceedings are pending in the above suit. This respondent is a minor.
His father Venkata Seetharama Rao died in 1987 from which time, the respondents
1 and 2 alone have been managing the petition schedule lands. The dispute in
question in this petition is in the personal knowledge of the respondents 1 and
2 and this respondent has no knowledge about the same. Subject to the rights of
this respondent in decree in O.S.No.189 of 1987 accounts of the income in the
schedule lands to be rendered by the respondents 1 and 2, this respondent abides
by the decision of the court.
8. The trial Court dismissed A.T.C.No.22 of 1993, A.T.C.No.23 of 1993 and
A.T.C.No.45 of 1997 respectively on the ground that the petitioners failed to
establish that there is landlord and tenant relationship between the petitioners
and the respondents and there is no useful information elicited from the
evidence of the respondents witnesses to prove that there is landlord and tenant
relationship and that mere possession of the property recently by the
petitioners does not give any right to claim the petitioners as tenants and that
the petitioners, who are legal heirs of Kamisetti Subbanna and Venkata Rao,
cannot get any tenancy rights over the schedule lands. Aggrieved by the common
order dated 24-05-2000 in A.T.C.No.22 of 1993 and A.T.C.No.23 of 1993, the
petitioners filed A.T.A.No.80 of 2000 and A.T.A.No.79 of 2000 respectively and
also aggrieved by the order dated 15-06-2005 passed in A.T.C.No.45 of 1997, the
revision petitioners herein filed A.T.A.No.30 of 2005 before the Appellate
Authority-cum-Principal District Judge, East Godavari District at Rajahmundry.
The Appellate Court dismissed the said appeals confirming the order of the
Special Officer under the Authority. Challenging the said orders, the present
Civil Revision Petitions have been filed.
9. Sri N. Vijay, learned counsel for the petitioners contended that the
Courts below have not properly considered the admissions made by the 1st
respondent, who is plaintiff in O.S.No.168 of 1990. He contends that the 1st
respondent, who is plaintiff in O.S.No.168 of 1990 clearly admitted that the
revision petitioners are the tenants in respect of suit schedule premises and
that when once the said admissions were made in the pleadings, the same have to
be taken into consideration and the same were also not retracted. As such, the
admissions have to be taken and the revision petitioners should have been
declared as permanent tenants under Section 6 of the Act. He also contends that
the evidence of PWs.5 and 6 V. Ramakrishna Bhaskara Rao and Nakka Kondala Rao
has not been considered properly. He contends that PW.6, who is plaintiff No.10
in O.S.No.168 of 1990, was not cross-examined and his chief examination goes
unchallenged, which can be the basis for declaring the revision petitioners as
tenants. He also contended that Venkat Rao who is plaintiff No.9 in O.S.No.168
of 1990 is not examined and that the two affidavits were marked as Exs.B.17 and
B.18 in spite of objections being raised. He also contended that evidence of
PW.7, who is petitioner No.1 in A.T.C.No.23 of 1993, was not properly
considered. He also contends that O.S.No.89 of 1996 filed R.5 against wife of
Venkata Rao is also dismissed. He also contended that ExB.17 could not have
been marked as N. Venkata Rao is not alive. He contends that the Appellate
Court has not considered other evidence except the effect of admissions in
O.S.No.168 of 1990. He also contended that as per the provisions under Order VI
Rule 4 CPC, the particulars regarding dates and other aspects have to be given,
but in the present case no such particulars are given. He also contends that in
the counter filed by the respondent-landlord, there is a bare denial and no
particulars about the fraud were given. Though plea of fraud is taken, there is
nothing stated in evidence about the fraud pleaded. He also contends that once
fraud is pleaded on one aspect, another fraud cannot be proved. In support of
his contentions, he placed reliance in judgments in Velu Pillai Padakalingam v.
Paramanandam Yesudasan1, A.E.G. Garapiet v. A.Y. Derderian2, The Commissioner,
Hindu Religious and Charital Endowments, Hyderabad3, Karnidan Sarda and another
v. Sailaja Kanta Mitra4, Peddavandla Narayanamma v. Peddasani Venkata Reddy and
others5, Jayalakshmidevamma v. Janardhan Reddy6, Nathoo Lal v. Durga Prasad7,
Basanth Singh v. Janki Singh and others8. In respect of the plea of fraud, he
placed reliance on A.C. Ananthaswamy and others v. Boraiah9, Shanti Budhiya
Vesta Patel and others10, Ranganayakamma and another v. K.S. Prakash and
others11 and Bijendranath Srivastava v. Mayank Srivastava and others12.
10. On the other hand, Sri P. Venugopal, learned counsel for the respondents,
contends that the petitioners are not cultivating tenants as per Section 2 (c)
of the A.P. (Andhra Area) Tenancy Act, 1956 and they are only intermediaries.
He contends that as the lands are only orchards, as per Section 18 (1) (b) of
the Act, the Act has no application to the petition schedule lands. He also
contends that the pleadings in petitions filed under Section 16 of the Act by
the petitioners are vague wherein at para-3 the revision petitioners stated that
mango trees are in existence and in para-5, they stated that there are dry crops
in the suit schedule lands. He contended that there are inconsistencies in the
pleadings. He contended that when once it is garden, as per Section 18 (1) (b)
of the Act, the Act has no application. He contended that no revenue records
are filed to prove the tenancy except giving some oral statements. He further
contended that as it is a case of tenants and the fathers and forefathers of the
revision petitioners are continuing as tenants, they should have filed some
revenue records to establish the same, but no such revenue record was filed. He
further contended that tenancy should be proved at least by producing revenue
records. In support of this contention, he relied on in Namburi Bangarraju v.
Indukuri Satyanarayanaraju and others13. He contends that the petitioners have
to establish their own case and not depend on the weakness of the respondents
even when the respondents have taken inconsistent in their pleadings. It is for
the petitioners to prove that they are cultivating tenants and there is no
clinching evidence to prove that the petitioners are tenants. He also contends
that proceedings in civil courts cannot be relied upon, while dealing with the
matters under special enactments. He further contended that the respondents
have clearly shown under what circumstances admissions were made in O.S.No.168
of 1990 and basing on such admissions, the revision petitioners cannot ask for
declaring them as tenants without leading any independent evidence. In what
circumstances O.S.No.168 of 1990 was filed was explained by the respondents and
both the Courts below accepted the same, and as such, no interference is called
for in this revision petitions. He contends that the revisional jurisdiction
under Article 227 of the Constitution of India can be exercised only for
correcting patent errors and evidence cannot be re-appreciated and came to a
different conclusion. He also contends that all errors cannot be corrected
under Article 227 of the Constitution of India as the revisional jurisdiction
under Article 227 is very limited. He relied on the judgment reported in Essen
Deinki v. Rajiv Kumar14.
11. On the other hand, in reply to the arguments of the learned counsel for
the respondents, the learned counsel for the revision petitioners contends that
there is no pleading as the land falls under Section 18 (1) (b) of the Act and
that Advocate Commissioner's report says that dry and wet crops form part of
suit schedule fields. He contended that when once the jurisdictional fact is
not pleaded, the same cannot be raised. He contends that after the pleadings,
the party should lead evidence only in respect of that pleadings but not
otherwise.
He also contends that the respondents have taken different stand at
different times and that in O.S.No.168 of 1990, the respondents have taken the
plea that the revision petitioners are tenants and in another suit filed, they
have taken plea that the revision petitioners are trespassers and in the present
proceedings, they have taken a plea that they are only watchman. He also
contends that the admission is best piece of evidence. Neither the evidence of
RW.1, RW.5 nor the evidence of RW.6 any way stated about the fraud.
12. In view of the rival contentions, the issues that fall for consideration
in this revision petition are,-
1) Whether the petitioners are cultivating tenants in the schedule lands, if so,
whether they are entitled for declaration under Section 16 of the Act;
2) Whether they are entitled for consequential relief of perpetual injunction.
13. The revision petitioners mainly relied on the admissions made by the 1st
respondent in the plaint in O.S.No.168 of 1990 on the file of Subordinate
Judge's Court, Rajahmundry. It was filed by the 1st respondent and the revision
petitioners against the third parties who occupied the lands of the respondents'
family. Ex.A.4 is the certified copy of plaint, which was filed in respect of
Ac.117.26 cents in Nidigatla village, Ac.14.08 cents in Gadala village and
Ac.6.30 cents in Madurapudi village of Korukonda Mandal. The said suit was
filed for permanent injunction restraining the defendants therein from
interfering with the plaintiffs' possession and enjoyment of the plaint schedule
properties. In the plaint, it was stated that the plaintiffs therein have been
in possession and cultivation of those lands by way of the 1st plaintiff, who is
1st respondent herein, leasing out the same to the other plaintiffs, who are
petitioners herein. The respondents have explained the admission and the
evidence of RW.1 show in what circumstances admissions were made and how it is
not binding. RW.1 deposed that except the 3rd petitioner, she does not know the
other petitioners and that she knows Subba Rao as watchman on salary basis and
that she never leased out the petition schedule property to the petitioners and
that the lands are not fit for cultivation. She says that about five or eight
years ago her watchman Subba Rao informed her that Nexalites high handedly were
trying to encroach into the schedule land, and at that time she was alone and
her daughter who is the 2nd respondent was in the States and that she told the
watchman to meet her advocate RW.6 and that the watchman brought some English
typed papers and ask her to sign those papers and that when she expressed that
she cannot understand or read English, Subba Rao informed her that the advocate
has signed those papers. She says that nobody read out the contents to her and
that she has signed in those papers and that she did not know contents of the
typed papers on which Subba Rao obtained her signatures and that after obtaining
her signatures Subba Rao took those papers to her advocate for filing case for
the purpose of preventing of Naxalites entering into the lands. She
categorically says that she did not instruct or inform her advocate RW.6 or any
other person that the petitioners are their tenants. She further says that
after the 2nd respondent returned from America, RW.1 informed her about Subba
Rao collecting her signatures on typed English papers on the pretext of
preventing Nexalites from entering into lands and that thereupon the 2nd
respondent enquired RW.6 and came to know about mentioning of the petitioners as
tenants in the schedule lands in those papers and that thereafter, she filed a
petition in the Civil Court stating that she did not voluntarily admit the
petitioners as tenants and also explaining circumstances in which she signed in
those papers. RW.1 says that she cannot read or write English and that she only
learnt signing in English. In cross-examination, she deposed that she does not
know whether her application to withdraw from the suit denying the contents of
the plaint, was dismissed.
14. RW.4 is the registered pleader's clerk under RW.6. He deposed that RW.1
did not come to their office for the purpose of filing O.S.No.168 of 1990 and
that her signatures were taken in the plaint at her house. He says that the 2nd
petitioner and two or three others of Kamisetti people went to RW.1's house and
obtained her signatures. He says that he also accompanied them and that neither
himself nor other persons read out contents of the plaint nor RW.1 read the
contents of the plaint. He says that the 2nd petitioner and others came, got
drafted the plaint and the suit was filed as out of order hurriedly and ad-
interim injunction order was obtained.
15. RW.6, who was a practicing advocate at Rajahmundry since 1958 and who was
the counsel for the 1st respondent's family in several litigations, deposed that
he drafted Ex.A.4-plaint in O.S.No.168 of 1990 on the instructions of three or
four plaintiffs out of plaintiffs 3 to 12 in the suit. He stated that RW.1, who
is plaintiff in O.S.No.168 of 1990, never gave any instructions in that matter
and that the 2nd respondent was giving instructions relating to their affairs
after the death of Partha Saradi. The 2nd respondent as RW.5 says that she was
out of India when the suit O.S.No.168 of 1990 was filed. RW.6 further states
that his clerk RW.4 went and obtained signatures of RW.1 in the plaint and that
as soon as the tenancy claim was made by the plaintiffs 2 to 13 and the same was
denied by the 1st plaintiff in that suit (RW.1), he reported no instructions for
the plaintiffs 2 to 13 and filed an application on behalf of the 1st plaintiff
to transpose plaintiffs 2 to 13 as defendants in that suit and that the said
application was dismissed advising separate steps have to be taken. He further
stated that he believed the version of those persons who gave instructions to
him for drafting Ex.A.4 plaint and drafted the same. RW.6 in his cross-
examination, he categorically says that he prepared the plaint in O.S.No.168 of
1990 without specific instructions of RW.1. He says that the relevant papers
were brought by three or four people out of the plaintiffs 3 to 13 in O.S.No.168
of 1990 and the said persons followed the 2nd respondent Subba Lakshmi to his
office and that Subba Lakshmi used to give instructions in some of the occasions
earlier to the said suit. He stated that because those persons accompanied
Subba Lakshmi on earlier occasion, RW.6 believed the representations of the
persons out of the other plaintiff in O.S.No.168 of 1990 and prepared Ex.A.4
plaint therein. The 1st respondent, apart from examining herself as RW.1,
examined her counsel RW.6 and pleader's clerk RW.4 to explain the circumstances
under which her signatures came on the plaint in O.S.No.168 of 1990. RW.6 who
is responsible advocate also deposed that Ex.A.4 was prepared without
instructions from RW.1. Both the Courts below have relied on evidence of RW.1,
4 and 6 and after assessing their evidence with reference to the attending
circumstances prevailing during the time of filing of O.S.No.168 of 1990, held
that in order to save those lands from the occupation of Raithu Cooli Sangham
backed by Naxalites, the 1st respondent and other petitioners joined together
and came forward with the theory of tenancy in favour of the plaintiffs 2 to 13
therein for the first time and hurriedly filed the plaint as out of order and
obtained ex parte interim injunction. The Courts below have examined those
admissions and found that they were made in those circumstances in order to
protect the lands from the third parties. The Courts below found that the said
solitary averment in Ex.A.4 cannot clothe the revision petitioners with any
tenancy rights in the petition schedule lands. The Courts below also found that
at no point of time the names of the petitioners were shown in the revenue
records or the land ceiling declarations and verification reports as tenants in
occupation and cultivation of the schedule lands and it is only for the first
time their names cropped up as tenants in the plaint filed in O.S.No.168 of
1990, which were made by the 1st respondent only under those circumstances. But
that cannot be taken advantage as admission for the purpose of coming to a
conclusion that the revision petitioners are tenants. Therefore, the Courts
below have not accepted the case of the respondents and observed that the said
admissions are made only in the circumstances prevailing and the same cannot be
used against the respondents. The Courts below also came to the conclusion that
the same is not binding on the 2nd respondent and the 3rd respondent, who are
not parties to Ex.A.4.
16. In the present case, the Courts below, considering the evidence of the
revision petitioners-PWs.1 to 7 and the evidence of RWs.1 to 7, came to the
conclusion that except the averment in Ex.A.4 that the revision petitioners are
tenants, no evidence is produced by the revision petitioners to show that they
are tenants and the evidence adduced by the revision petitioners also does not
support the case of the revision petitioners that they are permanent tenants.
Both the Courts below basing on the several judgments and by scrutinizing the
evidence held that the admissions made by the 1st respondent in the plaint in
O.S.No.168 of 1990-Ex.A.4 is not voluntary one and her signature on the plaint
and other documents in O.S.No.168 of 1990 were obtained when her daughter was
out of India and she was alone in the house. The Courts below also found that
the petitioners have to establish their case by independent evidence that there
is no landlord and tenant relationship between them and the respondents. The
Courts below, after appreciating the evidence found that the petitioners have
not established that there is landlord and tenant relationship and there is no
useful information elicited from the evidence of the respondents witnesses to
prove that there is landlord and tenant relationship to prove the said facts.
17. Learned counsel for the revision petitioners, in support of his contention
with regard to effect of non-examination of PW.6, relied on various precedents
in Velu Pillai Padakalingam v. Paramanandam Yesudasam15 A.E.G. Carapiet v. A.Y.
Derderian16, The Commissioner, Hindu Religious and Charitable Endowments,
Hyderabad v. Mudlamuri Ayyavurayya17, Karnidan Sarda and another v. Sailaja
Kanta Mitra18 to contend that since PW.6 was not cross-examined, the same should
be taken as unchallenged evidence. All the decisions state that any witness is
not cross-examined on any aspect by either side, his evidence goes unchallenged
and the same has to be believed. There is no quarrel regarding the said
principle. But, in the present case, except the oral evidence, no revenue
records were produced showing that the revision petitioners or the predecessors-
in-title or the ancestors are permanent tenants. As such, the evidence of PW.6
alone cannot be a ground to declare the revision petitioners as permanent
tenants. The Courts below have found that they have not adduced sufficient
evidence for declaring them as permanent tenants. That being a question of
fact, whether the evidence is sufficient or not cannot be a ground to reassess
or hold that the evidence is not sufficient by reappreciating the evidence in
these revisions.
18. In Nathoo Lal v. Durga Prasad19, the Supreme Court held that what is
admitted by a party to be true must be presumed to be true unless the contrary
is shown. But, in the present case, the admission made by the 1st respondent in
Ex.A.4 are clearly explained by leading evidence under what circumstances the
admissions were made and the Courts below found that the same can be held
against the respondents in view of the circumstances in which it was made. As
such, this decision has no application to the facts of the case.
19. In Basanth Singh v. Janki Sing and others20, the Apex Court held
that under Indian law, an admission made by a party in a plaint signed and
verified by him may be used as evidence against him in other suits. In other
suits, this admission cannot be regarded as conclusive, and it is open to the
party to show that it is not true. This decision supports the case of the
respondents since the respondents had let in evidence and shown that the
admission made by the 1st respondent in Ex.A.4 is not true and the same was
believed by the Courts below, which is a question of fact and the same cannot
also be interfered with in exercise of revisional jurisdiction by appreciating
the evidence.
20. In A.C. Ananthaswamy and others v. Boraiah21, the Apex Court held as
under:
".......To prove fraud, it must be proved that representation made was false to
the knowledge of the party making such representation or that the party could
have no reasonable belief that it was true. The level of proof required in such
cases is extremely higher. An ambiguous statement cannot per se make the
representor guilty of fraud. To prove a case of fraud, it must be proved that
the representation made was false to the knowledge of the party making such
representation. ...."
21. In the present case, the Courts below, on assessing the evidence of
the respondents, held that the admission was made under certain circumstances
and found the same to be not true. It is also a question of fact, which cannot
be interfered with. As such, the decision cited above also has no application
to the facts of the present case.
22. In Shanti Budhiya Vesta Patel and others v. Nirmala Jayaprakash
Tiwari and others22 , the Apex Court held as follows:
".... It is a plain and basic rule of pleadings that in order to make out a case
of fraud or coercion, there must be an express allegation of coercion or fraud,
and (b) all the material facts in support of such allegations must be laid out
in full and with a high degree of precision. In other words, if coercion or
fraud is alleged, it must be set out with full particulars....."
23. In the present case, the facts are different from the facts before the
Supreme Court. It is a case where under special circumstances, 1st respondent
signed Ex.A.4 and through the evidence, she proved that the admission made is
not true. As such, this decision has no application to the present case.
24. In Bijendra Nath Srivastava v. Mayank Srivastava and others23, the Apex
Court held as follows:
"........ This is in consonance with the rule that a charge of fraud must be
substantially proved as laid and that when one kind of fraud is charged, another
kind of fraud cannot, upon the failure of proof, be substituted for it. The
same is true for the charge of misconduct. This means under Order 6 Rule 4 CPC
particulars have to be furnished of the plea of fraud or misconduct raised in
accordance with Order 6 Rule 2 CPC and it is not permissible to introduce by way
of particulars a plea of fraud or misconduct other than that raised in the
pleadings......"
In view of the evidence led by the respondents in the present case, the Courts
below came to the conclusion that the admission made by the respondents is not
true and except the admission, there is no independent evidence or revenue
record to show that the petitioners are continuing as tenants. As such, this
decision has no application to the present case.
25. In Namburi Bangaraju v. Indukuri Satyanarayanaraju and others24, the Apex
Court held as follows:
"......The petition schedule property is situated in adjoining village where
revenue records are maintained meticulously. If really the land was under
possession of the petitioner and his father for the past half a century, it
would certainly have been reflected in one category of the revenue records or
the other. The petitioner did not file any such records. He tried to cover up
his lapse at the appellate stage by filing Ex.A.2, a certificate issued by the
Secretary, Gram Panchayat to the effect that the land is part of Gramakantam
(village site) and that the pattadar pass books are not issued for such land.
The appellate Court had examined the same and took the view that even if the
pattadar pass books cannot be issued for such land, there is no prohibition for
issuance of 10(1) account. A tenancy, to receive the protection under the Act
and exposing the landowners to severe disadvantage is required to be supported
either by written documents between the parties, or entries in the revenue
records. Mere oral assertion does not serve the purpose. The failure on the
part of the petitioner to file any such records establishes that he was not at
all in possession of the property, much less a tenant thereof.....
26. In Essen Deinki v. Rajiv Kumar25, the Apex Court held as follows:
"......It is merely a revisional jurisdiction and does not confer an unlimited
authority or prerogative to correct all orders or even wrong decisions made
within the limits of the jurisdiction of the courts below. the finding of fact
being within the domain of the inferior tribunal, except where it is a perverse
recording thereof or not based on any material whatsoever resulting in manifest
injustice, interference under the article is not called for.
..... Needless to record that there is total unanimity of judicial precedents on
the score that error must be that of law and patently on record committed by the
inferior tribunal so as to warrant intervention-it ought not to act as a court
of appeal and there is no dissension or even a contra-note being sounded at any
point of time till date. Incidentally, the illegality, if there be any, in an
order of an inferior tribunal, it would however be a plain exercise of
jurisdiction under the article to correct the same as otherwise the law courts
would fail to subserve the needs of the society since illegality cannot even be
countenanced under any circumstances....."
27. In view of the aforesaid discussion, it is to be seen that the revisional
jurisdiction does not confer an unlimited authority or prerogative to correct
all orders or even wrong decisions within the limits of jurisdiction of the
courts below. The finding of fact is within the domain of the inferior
tribunal, except where it is a perverse recording thereof or not based on any
material whatsoever resulting in manifest injustice, interference under Article
227 of the Constitution of India is not called for. As such, I do not find any
infirmity or error in the orders passed by the Courts below warranting
interference of this Court by exercising the restricted revisional jurisdiction
under Article 227 of the Constitution of India. Therefore, the Civil Revision
Petitions are liable to be dismissed.
Accordingly, the Civil Revision Petitions are dismissed. No costs.
As a sequel thereto, Miscellaneous Petitions, if any, pending shall stand
closed.
_____________________
A. RAJASHEKER REDDY, J
Date:11-10-2013
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