Supreme Court of India

Chittoor Chegaiah & Ors vs Pedda Jeeyangar Mutt & Anr on 8 March, 2010

Supreme Court of India
Chittoor Chegaiah & Ors vs Pedda Jeeyangar Mutt & Anr on 8 March, 2010
Author: P Sathasivam
Bench: P. Sathasivam, H.L. Dattu
                                                          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

9
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

11
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

12
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

13
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

15
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

18
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

19
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

20
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.

21
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

22
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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