TMI Blog1999 (7) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of ₹ 1200/- to the defendant on 24-4-1980 and terminated his services. Fearing that the defendant might enter into the schedule property highhandedly they filed a suit O.S.No.17 of 1981 on the file of the Principal District Munsif s Court, Kakinada, and obtained an interim injunction against the defendant. Having come to know of the same, the defendant entered into the plaint schedule property and occupied the hut, and hence the suit. 3. The defendant resisted the suit by filing a prolix written statement mentioning inter alia that he was the tenant of the suit schedule property, having been inducted into the same about 30 years ago and he was continuing as a tenant holding over. He filed ATC No.434 of 1981 having come to know that the plaintiffs in collusion with the Village Karanam was trying to correct the pass books. He raised the thatched shed in the leasehold property and he was also raising tobacco seedlings, bobbarulu, ragi, horse gram, red gram etc., dry crops and that the mango usufruct was being shared equally between the landlords and the defendant. He pleaded further that the rent payable over the schedule land was ₹ 350/- per year and he had been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. On the other hand, the learned Counsel appearing for the plaintiffs contended that the specific plea taken by the defendant in the suit being a tenant, it is for the defendant to prove the same, and failure thereof would automatically entail a decree in the suit being decreed. The learned Counsel further contended that the suit schedule property being a mango tope, the plea of the defendant that he was a tenant could not have been considered. In view of the above contentions the points that arise for my determination in this Appeal are: 1. Whether the suit schedule property is a mango tope ? 2. Whether the defendant is a tenant under the plaintiff ? 3. Whether the defendant is a watchman as pleaded by the plaintiffs ? To avoid any confusion, the parties may be referred to as they are originally arrayed in the suit. 7. Points 1 and 2 as set out supra, pertain to the jurisdictional aspect. The findings on these points ultimately if in the affirmative, would take away the jurisdiction of the civil Court and no relief for eviction could be granted as prayed for by the plaintiffs. Both these points are therefore integrally connected and touch the jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have been obtained in collusion with the revenue authorities. The documentary evidence adduced on either side is not rendering any assistance to the Court for an effective adjudication of this point. 9. Coming to the oral evidence adduced on the point, PW1 deposed on oath in the chief-examination that the suit property was a mango garden. In the entire cross-examination running into several pages, it has not been controverter suggesting specifically even that the suit property is a dry land or a part of it is a dry land and a part of it is a tope. DW1 in his evidence stated that out of Ac.4-65 cents of land Ac.2-00 is a vacant land and he has been raising vegetables and dry crops and in the remaining extent of land there is a mango garden. So according to the evidence of DW1 the garden is there in an extent of Ac.2.65 cts. DW1 in the cross-examination admitted that there are about 120 mango trees besides palm rah and sapota trees in the tope. PW2, who is said to be the neighbouring tenant, stated in his evidence that the land under the cultivation of the defendant consisted of Ac.2-00 dry and Ac. 2-00 mango tope. DW3 stated that about Ac.3-00 of the land is dry and the remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the land being tope land as it requires constant watch of the tope especially during the season when trees bear fruits. That is yet another indicia to determine the nature of the land. 10. The learned Counsel for the plaintiffs relied very much on Ex.A8, the certified copy of the order passed in IAs.1373 of 1981 and 272 of 1982 in ATC No.434 of 1981 by the Special Officer-cum-Principal District Munsif, Kakinada. The learned Special Officer under this order while dismissing the petition filed by the defendant under Order 39, Rule 1 of CPC seeking injunction has come to a conclusion in para 66 of his order as follows: Admittedly, Item No.1 contained mango tope. Even otherwise, the said report of the Commissioner discloses that item No. 1 contains predominantly mango-tope with palm rah trees etc., etc. It is not the case of either party, nor, it is the report of the Commissioner that Item No. 1 is a cultivable land or that any part thereof was ever cultivated. So, therefore, the alleged lease in favour of the petitioner, even if true, is only with respect of the usufruct of the said trees. The findings given by the Courts in Interlocutory Applications are euphamery an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute, shows that the immediate neighbours of the suit schedule land are certainly not the persons under whom these witnesses are claiming to be the tenants. There is no evidence on record to show that at what distance of the suit schedule mentioned property these people have been cultivating the lands. That takes away the efficacy of the evidence of these two witnesses. There remains the evidence of DW1 alone. DW1 in his cross-examination at page 6 admitted squarely that there had been no documentary evidence to show that he was a tenant in the suit schedule tope. Therefore, it is only the ipse-dixit of this witness that ultimately remains to be considered. 12. Admittedly, the plaintiffs are the owners of the suit schedule property. While it is the case of the plaintiffs that the defendant is their watchman, it is the case of the defendant that he is their tenant. Either way the possession of the defendant over the suit schedule property which is undisputed is a permissive possession. The defendant, therefore, cannot validly take the plea of any adverse possession. If no evidence is adduced, by either of the parties to the suit, given the fact that the plaintiffs are the owners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the nature of a second hand secondary evidence. Unless the person who is a direct witness to the incident and who furnished information is examined, the evidence of the press reporter who furnished the news item having gathered the same is nothing but hear say evidence, and therefore, is not admissible. Ex.B.2 coupled with the evidence of DW4 cannot, therefore, help the case of the defendant. The evidence both oral and documentary on the side of the defendant in my considered view, therefore, falls far short of the requisite proof of establishing the crucial issue of tenancy which touches the jurisdiction of the Court. Further more, the finding that the suit property is a mango garden, having regard to its predominant use, certainly negates the plea of tenancy, as envisaged by the Andhra Pradesh (Andhra Area) Tenancy Act. 13. Coming to the specific plea of the plaintiffs that the defendant is their watchman though they sought to rely upon certain accounts and the entries made therein, the Court below is very critical and skeptical about this sort of documentary evidence. Apart from the comment that has been made by the lower Court there shall be some evidence in the first i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
