REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2012 OF 2002
Chittoor Chegaiah & Ors. .... Appellant (s)
Versus
Pedda Jeeyangar Mutt & Anr. .... Respondent(s)
WITH
CIVIL APPEAL NO. 2011 OF 2002
AND
CIVIL APPEAL NO. 2014 OF 2002
JUDGMENT
P. Sathasivam, J.
Civil Appeal No. 2012 of 2002:
1) This appeal is directed against the judgment and
order dated 17.11.2000 passed by the High Court of
Judicature, Andhra Pradesh at Hyderabad in Civil
Revision Petition No. 2124 of 1996 whereby and
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whereunder the High Court has dismissed the petition
filed by the appellants herein.
Civil Appeal No. 2014 of 2002:
This appeal is directed against the judgment and
order dated 17.11.2000 in Civil Revision Petition No. 2322
of 1996 whereby the High Court has dismissed the
petition filed by the appellants herein by following its
judgment passed on the same day in C.R.P. No. 2124 of
1996.
Civil Appeal No. 2011 of 2002:
This appeal is filed by the appellants who were not
parties before the High Court against the judgment and
order dated 17.11.2000 passed by the High Court of
Andhra Pradesh in C.R.P. No. 2322 of 1996.
(a) Since the issues which arose in these appeals are
similar, they were heard together and are being disposed
of by this common judgment. The facts in Civil Appeal No.
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2012 of 2002 are sufficient for the disposal of all these
appeals. They are as under:
(b) A property consisting of 29 acres 59 cents in T.S.
No.11 and old T.S. No. 507 of Tirupathi town
originally belonged to the Plaintiff – Pedda Jeeyangar Mutt
(hereinafter called `the Mutt’) – respondent herein. The
then head of the Mutt granted a permanent lease in
respect of 12 acres of land to one Kotilingam Subbaraya
Chetti under a registered lease deed dated 8.01.1900. He
also granted a permanent lease in respect of 15 acres of
land to one Shaik Budan Saheb under a registered lease
deed dated 29.11.1915. Shaik Budan Saheb sold the
leasehold rights in equal halves to Narasimhaiah under a
deed dated 01.12.1919 and Mandaram Munikannaiah
under a deed dated 19.08.1922. Narasimhaiah sold his
half share purchased under deed dated 1.12.1919 to
Mandaram Munikannaiah under a registered lease deed
dated 19.08.1922. Thus Mandaram Munikannaiah got 15
acres from the said property and out of that he leased out
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12 acres of land to Kotilingam Subbaraya Chetti by a
registered lease deed dated 06.01.1919. The Mutt filed
O.S. No.152 of 1930 on the file of the District Munsif’s
Court, Tirupathi, against Mandaram Munikannaiah in
respect of total land. During the pendency of the suit,
there was a compromise and the Mutt executed a
registered permanent patta dated 11.03.1931 in favour of
Mandaram Manikannaiah for the total land and he sold
10 acres of land to Pappaiah under a registered sale deed
dated 21.09.1935 and after his death, his son Polaiah sold
the said land to Chittoor Siddaiah under a registered sale
deed dated 25.05.1938. Polaiah created usufructory
mortgage of the property in favour of Chithoor Siddaiah
under a registered deed dated 07.06.1937 and eversince
he is in possession of the property. On 07.08.1964, the
Mutt filed O.S. No. 59 of 1964 before the Sub-Court,
Chittoor for declaration and possession which was
transferred to Sub-Court, Tirupathi and renumbered as
O.S. No. 7 of 1971 and the same was dismissed by the
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subordinate Judge. Against the said judgment, Chittoor
Siddaiah (defendant No.3 in the suit) preferred A.S.No.
130 of 1973 and one S.Veeraswamy Naidu (defendant
No.4 in the suit) who was a purchaser from Mandaram
Munikannaiah filed A.S. No. 243 of 1973 on the file of
the High Court of Andhra Pradesh. The High Court
allowed the said appeals. In the year 1980, the Mutt –
respondent herein, filed eviction petition bearing A.T.C.
No. 35 of 1980 and the same was dismissed by the
Principal District Munsif-cum-Special Officer, Tirupathi by
order dated 24.08.1987. During the pendency of A.T.C.
No. 35 of 1980, the Mutt filed O.S.No. 176 of 1981 on the
file of the Additional sub-Court, Tirupathi for declaration
and permanent injunction and the same was disposed of
by holding that the plaintiff is entitled for declaration as
permanent owner but without a right to recover
possession. Against the order passed in A.T.C. No. 35 of
1980, the Mutt filed ATC No.9 of 1987 under the A.P.
Tenancy Act and the same was allowed by the Additional
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District Judge vide order dated 03.06.1996. Aggrieved by
the said order, the appellants herein filed Civil Revision
Petition No. 2124 of 1996 before the High Court which
was dismissed by the High Court on 17.11.2000.
Following the judgment in Civil Revision Petition No. 2124
of 1996, on the same day, the High Court dismissed Civil
Revision Petition No. 2322 of 1996. Hence the present
appeals have been filed before this Court by way of special
leave petitions.
2) Heard Mr. M.N. Rao, learned senior counsel for the
appellants and Mr. A.V. Rangam, learned counsel for the
respondents.
3) Before going into the merits of the claim made by both
the parties, it is useful to refer the definition of “cultivating
tenant” in Section 2(c) and “landlord” under Section 2(f) of
the Andhra Pradesh (A.A.) Tenancy At, 1956 (hereinafter
referred to as `the Act’):
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Section 2 (c)
“”Cultivating tenant” means a person who cultivates by his
own labour or by that of any other members of his family or
by hired labour under his supervision and control, any land
belonging to another under a tenancy agreement, express or
implied, but does not include a mere intermediary”;
Section 2 (f)
“”landlord” means the owner of a holding or part thereof who
is entitled to evict the cultivating tenant from such holding
or part, and includes the heirs, assignees, legal
representatives of such owner or person deriving rights
through him”:
With these statutory definitions and the Mutt having
approached the authorities under the Act for eviction of
the appellants, let us consider the rival claims. In the
earlier part of the pleadings, we have adverted to the case
of both the parties, however, it is useful to trace the rival
claim briefly hereinafter. As early on 29.11.1915,
permanent lease was executed in favour of Sheik Budan
Saheeb in respect of 15 acres of land. The suit land was
sold by him into two halves one to Shri Narasimhaiah and
another to Mandaram Munikannaiah. Narasimhaiah sold
his share to Mandaram Munikannaiah by sale deed dated
19.08.1922.
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4) The Mutt granted 12 acres of land on permanent lease
to one Kotilingam Subbaraya Chetti in the year 1919 and
this land was occupied by Mandaram Munikannaiah. It
was pointed out that there is a condition in the lease deed
dated 19.11.1915 that those land shall always remain as
Modati Eeedu (1st Charge) for cist and pay Jodi payable to
the Government.
5) The Mutt filed O.S. No. 152 of 1930 against Mandaram
Munikannaiah in respect of the land occupied by him.
During the pendency of the suit, there was a compromise
and the Mutt executed a registered permanent lease Patta
(though not a permanent lease) on 11.03.1931 in favour of
Mandaram Munikannaiah for the total extent of land,
namely, 29 acres-59 cents. It is useful to refer the terms
of permanent lease patta dated 11.03.1931:
i) Mandaram Munikannaiah shall enjoy entire schedule
property by paying Rs. 25/- to the Mutt from Fasali 1340.
ii) In future Mandaram Munikannaiah or his legal heirs
can transfer etc. the schedule mention land to any one
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and such fact shall be intimated to Pedda Jeeyangar the
Matadhipathy, and transfer deed shall be got executed
with his consent by the transferer.
iii) The schedule mention land shall always been first
Eeedu (1st Charge) for the said permanent lease amount.
iv) The pedda Jeeyangar alone shall pay the usual jodi,
Cess, etc. and cist to Government.
v) Further Pedda Jeeyangar shall have a right to claim
the excess amount paid, if any, to Government from
Mandaram Munikannaiah.
vi) Mandaram Munikannaiah shall have absolute and
unlimited rights in respect of schedule mentioned land
and shall enjoy the same as per his wishes in perpetuity.
vii) The Pedda Jeeyangar have no manner of right in
respect of the land except the right to recover theerva
(rent).
6) By pointing out the various clauses in the permanent
lease, Mr. M.N. Rao, learned senior counsel for the
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appellants submitted that the Mutt has no right in respect
of the property except to recover theerva (rent).
7) An extent of land of 10 acres which is a subject matter
of the said suit was sold to Pappaiah on 21.09.1935. After
the death of Pappaiah, his son Polaiah became the
absolute owner of the subject matter of the suit property.
By registered deed dated 07.06.1937, Polaiah created
usufructry mortgage of the property in favour of Chittoor
Siddaiah (father of the appellant) and eversince he has
been in possession and enjoyment of the property to the
knowledge of the Mutt. The materials placed further show
that by a registered deed dated 25.05.1938 Polaiah sold
the said 10 acres of land to Chittoor Siddaiah.
8) In order to establish its right, title and possession, the
Mutt filed O.S. No. 59 of 1964 before Sub-Court, Chittoor
on 07.08.1964 which was subsequently transferred to
Sub-Court Tirupathi and re-numbered as O.S. No. 7 of
1971. In the said suit the Mutt is the plaintiff and
Thirumala Tirupathi Devasthanam is Defendant No. 1,
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Defendant No. 2 – Board of Trustees of TTD, Defendant
No. 3 – Chittoor Siddhaiah, father of the present appellant
and Defendant No. 4 is Veeraswamy Naidu. In the plaint,
it was contended that permanent lease deed which was
executed in favour of Mandaram Munikannaiah was null
and void and the same was barred under Section 29 of the
Madras Hindu Religious and Charitable Endowments Act,
1929. On the other hand, in the written statement, it was
specifically contended that the subject matter of the land
has been perfected by the predecessors of the appellant by
adverse possession. On 03.10.1972, the Sub-Court
Tirupathi decreed the suit holding that the defendants
have failed to pay the rents as tenants and, therefore, they
are liable to be evicted. The plea of adverse possession
was rejected. The Court also held that Defendant Nos. 3
and 4 (appellants herein) are only entitled to
compensation for the improvement effected in the field.
Aggrieved by the said judgment and decree, the appellants
herein filed appeal A.S. No. 130 of 1973 before the High
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Court. Defendant No. 4 has also filed an Appeal No. 243
of 1973. The Mutt has filed cross objections. The High
Court by a common judgment dated 12.10.1976 held that
the appellants have perfected the title in respect of
tenancy rights by adverse possession and the suit was
filed beyond the period of limitation. The High Court
further held that the Act will apply to the facts of the case
and observed that it would be open to the parties to take
steps as may be open to them under the provisions of the
Tenancy Act. With the said observation, the High Court
disposed of the appeals and dismissed the cross
objections filed by the Mutt. It is important to point out
that the judgment of the High Court in the above appeals
become final as no appeal was preferred.
9) After the judgment of the High Court in A.S. No. 130 of
1973, nearly after three years the Mutt filed ATC No. 35 of
1980 under the A.P. Tenancy Act against the appellants
for eviction on the ground that the appellants herein
defaulted in payment of rent from 1373 fasli (1963
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onwards). It was highlighted by the appellants by filing
reply contending that what was granted by the Mutt in
favour of Mandaram Munikannaiah on 11.03.1931 was
not a permanent lease but it was only a permanent patta.
It was pointed out that the father of the appellants had
purchased the suit property by way of registered sale deed
dated 25.05.1938 and since then they are in continuous
possession and enjoyment of the suit property. Further it
was contended that the appellants even otherwise have
perfected the title by adverse possession and therefore
there is no relationship of landlord and tenants between
the Mutt and the appellants. In the same way, the ATC
filed by the Mutt is barred by limitation.
10) During the pendency of ATC No. 35 of 1980, the Mutt
filed O.S. No. 176 of 1981 on the file of additional Sub-
Court Tirupathi for declaration and permanent injunction.
The suit was disposed of holding that the plaintiff therein
is entitled for declaration as permanent owner but without
right to recover possession. Here again, the said finding
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become final as the Mutt has not challenged the same,
however, appeal was filed by the appellant herein against
the order of granting injunction by the learned Judge in
O.S. No. 176 of 1981. The appeal A.S. No. 75 of 1989,
which was also dismissed and second appeal filed by the
appellants herein that is S.A. No. 1081 of 2000 is still
pending on the file of High Court of Andhra Pradesh at
Hyderabad.
11) On 24.08.1987, learned Judge dismissed ATC No. 35
of 1980 holding that the appellants perfected title by
adverse possession. On 03.06.1996, ATA No. 9 of 1987
filed by the Mutt was allowed without taking note of the
dismissal of ATC 35 of 1980 filed by the very same Mutt.
In those circumstances, Civil Revision No. 2124 of 1996
was filed by the appellants before the High Court under
Article 227 of the Constitution of India. Among the
several contentions, the main contention raised by the
appellants herein is that the judgment of the High Court
in appeal A.S. No. 130 of 1973 became final and the Mutt
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has lost the right to recover the land from the appellants
herein. The judgment would operate as res judicata
against the Mutt. However, on 17.11.2000, the High
Court dismissed the Civil Revision No. 2124 of 1996 by
holding that the relationship of landlord and tenant
between the appellants and the first respondent-the Mutt,
does not suffer from any legal infirmity, not barred by any
res judicata dismissed the revision. As observed earlier,
challenging the said order three appeals have been filed
before this Court.
12) Now, we have to consider whether the decision of the
High Court in holding that the findings given in A.S. No.
130 of 1973, the earlier judgment on the same subject
matter, would not operate as res judicata, when in the
said decision the High Court had categorically held that
the appellants perfected their title by adverse possession
in the schedule property and the suit is barred by
limitation. In addition to the same, we have also to
consider whether the High Court is correct in holding that
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the Mutt is entitled to recover the suit lands when there is
irrevocable condition in the lease patta dated 11.03.1931
wherein it is stated that the Mutt is entitled only for
recovery of theerva (rent) and not the possession.
13) The common judgment of the High Court dated
12.10.1973 in A.S. No. 130 and 243 of 1973 with cross
objections are available and placed before this Court as
Annexure-P1. After narrating the entire events
commencing from permanent lease patta, the High Court
came to the conclusion a) the suit for eviction of the
appellants and for recovery of possession is not
maintainable before a Civil Court b) a proceeding in that
direction is maintainable only before the statutory
designated authority under the Andhra Pradesh Tenancy
Act, 1956 c) the suit is barred by limitation and d) the
appellants have perfected their title to the suit properties
with respective tenancy rights.
14) Res Judicata is defined under Section11 of the Code
of Civil Procedure [CPC] as under:
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“No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and
substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them
claim, litigating under the same title, in a Court competent
to try such subsequent suit or the suit in which such issue
has been subsequently raised, and has been heard and
finally decided by such Court.”
Explanation I- The expression “former suit” shall denote a
suit which has been decided prior to the suit in question
whether or not it was instituted prior thereto.
Explanation II.- For the purposes of this section, the
competence of a Court shall be determined irrespective of
any provisions as to a right of appeal from the decision of
such Court.
Explanation III.- The matter above referred to must in the
former suit have been alleged by one party and either denied
or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have
been made ground of defence or attack in such former suit
shall be deemed to have been a matter directly and
substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not
expressly granted by the decree, shall, for the purposes of
this section, be deemed to have been refused.
Explanation VI- Where persons litigate bona fide in respect
of public right or of a private right claimed in common for
themselves and others, all persons interested in such right
shall, for the purposes of this section, be deemed to claim
under the persons so litigating.
Explanation VII.- The provisions of this section shall apply to
a proceeding for the execution of a decree and reference in
this section to any suit, issue or former suit shall be
construed as references, respectively, to proceedings for the
execution of the decree, question arising in such proceeding
and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a
Court of limited jurisdiction, competent to decide such issue,
shall operate as res judicata in as subsequent suit,
notwithstanding that such Court of limited jurisdiction was
not competent to try such subsequent suit or the suit in
which such issue has been subsequently raised.
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From the above, it is clear that a court is barred from
entertaining an issue which has already been decided
previously by any court of law.
15) The appellants in the present case have argued that
the decision of the High Court in A.S. No. 130 of 1973
fully resolved the issues arising in the present case and,
thus, would bar their agitation now. In order to determine
this question, we must look closely at the decision of the
High Court and see what the Court actually held.
16) The Mutt had approached in appeal to the High
Court in A.S. No. 130 of 1973 for declaration of the title of
the concerned property in their favour. The Court held
that it did not have jurisdiction to entertain a suit for
possession against the defendants owing to the A.P.
Tenancy Act, 1956. It was held that it was the Tahsildar
acting under the Act who was competent to entertain such
matters relating to the termination of tenancy and the
eviction of the cultivating tenant. The court reached this
conclusion by examining the Act holding that the
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relationship of Tenant-Landlord is established, thus
confirming the jurisdiction of the Act and ousting the
jurisdiction of a Civil Court. Nevertheless, the court went
on to determine the title of the property itself. Arguments
were raised that the permanent lease or patta entered into
would be in violation of Hindu Religious Endowments Act,
and thus be infructuous. It was pointed out that the
permanent lease deed 29.11.1915 is ab initio void as
sanction was not obtained from the Endowment
Authorities as prescribed under the Madras Hindu
Religious and Charitable Endowments Act, 1929 which
prohibits any alienation, lease, sale or mortgage exceeding
five years and the appellants who had purchased in good
faith and continuing in possession without any
interruption since 1931, have perfected their title by
adverse possession. The court on this point held that
since the suit had not been brought within the limitation
period of 12 years, the appellants had perfected their title
with respect of tenancy rights on the basis of adverse
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possession.
17) Therefore, the High Court in that instance held two
things, (1) that the court did not have jurisdiction over the
matters owing to the special process prescribed under the
Tenancy Act; and (2) the title with respect of tenancy
rights was perfected owing to adverse possession. These
two rulings are not in conflict with each other, and are
equally binding. The jurisdiction of the High Court was
ousted only to a limited extent, i.e. with respect to the
eviction of the tenants and possession of the property, as
the procedure for that was provided under the Act. But
the Court continued to have jurisdiction with respect to
the determination of the title of the property.
18) The appellants seem to have misunderstood the
import of the High Court decision while relying on it for
the purposes of res judicata. The court, in no uncertain
terms, held that the title of ownership belongs to the
present respondents, but the present appellants had the
title with respect of tenancy rights. This decision was
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perfected by non-appeal and is binding on the parties.
Thus, the present appellants are not the owners of the
property, but tenants on conditions prescribed under the
permanent lease patta dated 11.03.1931 mentioned
above. Thus, we hold that the decision of the High Court
in 1973 would not bar any proceedings under the Tenancy
Act as the issue decided by the court in that instance was
merely the tenancy title in favour of the appellants, while
the present case is eviction of tenants under Section 13 of
the Act.
19) Coming to the next question, it has to be determined
whether a permanent lease gives rise to a tenant-landlord
relationship within the meaning of the Act. The appellants
have relied upon Chinnappa Reddy, J.’s opinion in G.
Veeraswamy v. Uppardasta Papanna, 1969 An. W.R.
359, where it was held that the Act applies only to tenancy
agreements and not to permanent tenancies. We must
also note two other opinions regarding the interpretation
of the application of the Act. In U. Pappanna Sastri v.
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Naga Venkata Satyavati, AIR 1972 AP 53, the Court
placed reliance on K. Sesharatnamma v. A.
Satyanarayana, 1963 (2) An. W.R. 32. It was held that
the pre-condition for establishing the tenant-landlord
relationship is that the landlord should have reserved for
himself the right to evict the tenant.
20) Thus, a person shall qualify to be a landlord under
the meaning of the Act if he is entitled to evict the tenant.
Such entitlement can arise either directly due to the
agreement entered into (i.e. by providing the time period of
tenancy) or by providing the conditions or terms of
tenancy violating which the tenant may be evicted under
Section 13. We find no reason why a permanent lease
which provides terms would not result in a tenant-
landlord relationship since it is implied in such an
agreement that non fulfillment of the prescribed terms
would give the right to the landlord to evict the tenant.
One such term can be payment of periodic rent, which
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exists in the present case. Thus, the respondents in the
present case do qualify as landlords.
21) For the aforementioned reasons, we hold that the
present proceedings emerging from the ruling of the IIIrd
Additional District Judge, Tirupathi, exercising the powers
of Appellate Authority under the A.P. Tenancy Act does
not suffer from any legal infirmity as the proceedings are
not barred by res judicata. Furthermore, the parties
qualify as tenant-landlord and are, thus, amenable to the
jurisdiction of the Tenancy Act. In view of categorical
finding of the Appellate Authority that the tenants have
committed default in payment of rent from fasli 1372 and
never paid rent, they are liable to be evicted as per Section
13 of the Act which was rightly affirmed by the High
Court. We thus find no reason to interfere in the order of
the High Court, consequently, all the three appeals are
dismissed with no order as to cost.
……………………………………J.
(P. SATHASIVAM)
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……………………………………J.
NEW DELHI; (H.L. DATTU)
MARCH 8, 2010.
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