UPPALAPATIVEERA VENKATA SATYANARAYANARAJU AND ANOTHER v. JOSYULA HANUMAYAMMA AND ANOTHER

Citation: [1962] 3 S.C.R. 910; 1961 INSC 283

Court: Supreme Court of India

Bench: K.N. WANCHOO , K.C. DAS GUPTA, J.C. SHAH, RAGHUBAR DAYAL

Judgment date: 1961-09-29

Case summary

1961 INSC 283. Supreme Court of India judgment dated 1961-09-29. UPPALAPATIVEERA VENKATA SATYANARAYANARAJU AND ANOTHER v. JOSYULA HANUMAYAMMA AND ANOTHER....

Judgment text

3 S. C. R. SUPREME COURT REPORTS 910 SU~REME COT:JRT REPORTS [1962] UPPALAPATIVEERA VENKATA SATYANARAYANARAJU AND ANOTHER v . JOSYULA HANU! lfAYAMMA AND ANOTHER (K. N. W. aNOHoo, IC C. D. as GUPTA, J. C. SHAH and RAGHUBAR DAYAL, JJ. ) Atlornmtnt-By tenant" in. favour of ptreons claiming but having no titl!. -. :::-How made-Payment of rent if tteceeaary- Finding of /Mt-Interference by High Court in second appeal. In the prescn t suit for possession the courts found that none of the parties had a legal title to the propcrfy in the dispute and in determining which of the parties had possessory iitle to the said property the trial court found th~t on the death of the daughter of the original owner the so called reversioners got a Kodaha (Kabuliyat) executed in their favour by two tenants of the last possessor of the property and themselves exe~uted a CO\v]e in their favour but the said tenants did not pay an() rent to the so-called revcrsioners.

The trial c,ourt held that though there was a kadapa by which it might be said that the tenants \vho were there from before had attorned t6 the so~called rcversioners it \Vas a mere paper transaction as no rent was paid. On appeal the first appellate court relying on the Kadapa and cowle found that the so-called ~reyersioners got peaceful possession of the property but did. not enter into the question whether any rent was paid to them by the tenants. On second appeal the High Court held that the real question was whether the tenants really attorned to the rtversioners and as the first appellate court did not cdnsider whether there \Vas real attornment by payment of rent sent back the case to the said court for a fresh finding on that question whereupon that court returned a finding in favour of the respondent on the question of possession.

The contention of the appellant on appeal by special leave was that the High Court had no jurisdiction in second appeal to reverse a finding ofJact arrived at by the first appellate court and as the High Court 'indirectly reversed that finding of fact by calling for a further finding on the question of possession the judgment of the High Court should be set aside. Qeld (per K. N. Wanchoo, K. C. Das ,Gupta and T. C. Shah, JJ. ) that if the so-called revcrsioners had title in ihe sense that they were the next revcrsioners, then attonnent by the'l(adapa would have been sufficient but where a person in whose favour attornment had been made had no title, a n1ere paper attornmcnt would not be sufficient unless there~ was a rea\ attornment in the licnse that the person who attorncd a so paid rent voluntarily or unrier a decree to the ! Jll person in \Vhosc favour the attornment was made.

The first appellate court had merely considered the paper attornrnent and had not considered the evidence as tr> the payment of rent which \~as there and had been considered by the trial court. The High Court ""'. as, therefore, Ju_~tified in calling for a finding on a question which was not considered by the lower appellate court. Per Raglmbar Dayal, J . -Once a tenant agreed to accept the person claiming title fron1 the previous landlord, that amounted to attornment in favour of the ne\v landlord and was no more dependent on the future conduct of the tenant by way of payment of rent or otherwise. Krishna }. Jrasad Lal Singha Deo v. Baraboni Coal ()oncern, (1937) L. R. 64 I. A. 3ll, referred to. There was no good reason why the possession of tenants \vho had attorned to a person having no title be not considered to be his possession in determining whether he had preferential possessory title to that of another who too had no title.

The mere fact that certain evidence had not been closclv scrutinised or in other \Vords, not scrutinised in a manner i;1 which the second appellate court des. ired it to be scrutinised, could not be a ground for interference ,,,. ith a finding of fact in second appeal. In the present case the Kadapa the terms of which were different from those of the old one, \Vas not a deed of attornment merely substituting the new landlord in place of the old but was a document accepting fresh tenancy but as the new lessors had no title to the property the lease executed by the created no right. CIVIL ArPELLA'l'E Jum~DlC'l'IUN: Civil Appeal No. 459 of l! J58. Appeal by special leave from the judgment antl decree dated June :2! l, 1955, of the former Andhra High Court in Second Appe il No. 730 of 1949. A. V. Viswanatha Sastri and '1'. V. R. Tatachari, for the appellants. K. Bhimasankaram and G. Gopafokrishnan, for the respondents. l! J61. September 29. The judgment of Wanchoo, Das Gupta and Shah, JJ.

, was delivered' by Wanchoo, J .. Dayal J. , delivered a separate judgment. ! J 12 SUPRE~IE OOURT REPORTS [l! J62) 'VA}ICUOO, J. -This is an appoal by special loave from the judgment and decree of tho Madraa High Court. Tho appellants wero defendants in a suit brought by the rnspondents for posseBSion of certain properties whi"h originally belonged to one Subbarayudu. The case of the rcspoudents wa. a that Subbaro. yudu executed a will dated September 15, 1885. Under that will tho property pa. ssed on his death to his wife with life interest and after her death absolutely to his . The High Court took the view that the finding of the Subordinate Judge that the BO· called rcveraioners were in possession from 1933 to 1930, could not be accepted .. According to the High Court, the main question was whether the tena· nts who were there from before really attomed tot. ho roversioners.

The High Court then went into som o of the evidence and hold that various matters which should have received the ntt{'ntion of tho Subordinate ,Judge in coming to a conclusion on this import. ant point of fact wcro not considered hy him; therefore it \Vas not prepared to accept tho finding of the Subordinate ,Judge in second appeal and requircrl the Subordinate Judge to submit a fresh finding on this question. When the matter went baok to the Subordinate Judge he , however, had merely considered tho paper attornment and had not considered the evidence as to payment of rent, which was there and which had been considered by tho trial court. The trial court had come to the conclusion after considering the evidence relating to payment of rent that in fact there was no payment though tbe attornment was made through the kada. pa.

Tho trial court therefore held that from 1D33 to 1936, only the tenants were in possession but they never paid rent to anybody and thus neither party was in possession thrvugh them. This aspect of the finding of the trial court was com-pletely overlooked by the Subordinate Judge who decided the question of posseBSion merely on the paper attornment (namely, the kadapa). What the High Court seems to have meant when it said that the real question was not properly considered by the Subordinate Judge therefore was that he was moroly satisfied with paper attornmont in a case based on posse8Sory title which waa not enough in law and had not given any finding as to whether the attornment was a reality in the sense that the rent was pa. id and would thus result in effective posst•BBion of the so·ca. lled revorsioners through the tenants. It seems to us therefore that ~hough the form in which the High Court expreBl! Cd itself when it called for a. finding was not happy, what the High Court.

really did was to hold that there waa no finding 'by the Subordinate Judge on tho question of effective poBBeBBion of the so-called reversioners after a oonaideration of the evidence relating to pa)'1'1ont of rent etc. ; it therefore ca. lied for a finding on the question of effective possession after ,. 1961 consideration of the entire evidence. This in our opinion the High Court was justified in doing be- Uppalapati Vura Venkata cause the trial court had considered the entire Satyana1ayanaraju evidence and had come to the conclusion that the v. Josvula so-called reversioners had no effective possession Hanmfiayamma and the attornment through the kadapa was a mere paper transaction. In these circumstances it cannot be said that the High Court had no jurisdiction to call for a finding. It is not disputed that if the High Court had jurisdiction to call for a finding the final order of the High Court allowing the appeal based on the finding which was submitted was not open to question.

We therefore dismiss the appeal but in the circumstances pass no order as to eosts of this Court. RAGHUBAR DAYAL, J. -I agree that the appeal Ra1hubar D. ,al J. be dismissed, but for different reasons. If Narasimhulu and Ramudn alia. s Mark, who were in possession of the land in suit under the lease, Ex. P-6, dated May 6, 1929, for six years from Josyula Krishnavenamma, had attorned to Ramakotiah and Seetharamiah by executing the Kadapa (Kabuliat) Ex. D-4, on March 16, 1933, I do not think that any further payment of rent was necessary to make the attornment effective and am of opinion that in that case the view of the learned Subordinate Judge to the effect that the predeces-sors-in-interest of the defendants-appellants were . -in possession through their tenants over the land in suit, w:i. s correct. Tho High Court did not decide by its first order remitting the point No. 2, viz.

, 'whether the plaintiffs got into possession of the 1mit properties earlier than the defendants and their predecessor-in-title and whether they are entitled to recover possession of the suit properties on the strength of their possessory title' for a fresh finding that the attornment by the execution of the deed of Kadapa was not good attormnent without the executants paying rent to Ramakotiah and Seetharamiah. The learned Judge simply said : "Apa. rt from the question whother the principle of law adopted by tho learned Judge iR well. founded or not, on which I express no opinion 11. t present, it seems to mo that the finding of the learned J udgo that the first defendant had prior possession from 1! )~3 to 1936 cannot be accepted in second appeal. " 'fhe finding about tho prior po.

qscssion, of the learned Subordinate Judge ww not accepted by the High Court because it considered that the Subordinate ,Judge had not closely scrutinized the cvidPnco in the case on tho very crucial question in issue between the parties. This crucial question wM for-inulat. e , I see no good reason why their possession be not t. akcn to be tho possession on behalf of that person, irrespective of the fact whether that person had k1:al title or not. If he had legal title, no question of relying on posscssory title would c\·er arise. It is only in the ca:;o of his failure tu establish his legal Litle that. lw has to fall back upon possessory title. I see no good reason why the possossion of tenants who h1d attorned to a person h. iYing uo title be not considered tu be his possession in determining whether he Imel preforential po:lllessory title to that of a11other, who too has no title and secured possession of the land subsoque11t to the atturnment.

In this view of the matter, I am of opinion that the High Court was wrong in asking for a fresh finding ou the question of possession 1rhc·n it had not decided thll. t the tenants had not, in law, attorned to So<! tharnmiah and B. amakut;ah, on the basi8 of the two elocumcnts Kadapa Ex. D. 4 and CCJ\rle Ex. D-5, am! whon according t. o tho first app~llate court, the effect of those docmnents was that the tenants had attorned to them. I am, however, of opinion, though the point wao not raised, that tho Kaela. pa Ex. D·4 is not an agreement by tenants simply 1iccepting the claimants to bu tbe nuw landlords as, by this document, they do not j1rnt substitute the new landlords in the place of the old. Thoy really took a new leMe from those two persons. The terms of the new lease wore diffon•nt from those of the lease of Krishna\•onamm11.. The unexpired period of the tenancy was two years. C'nder the Kaelapa, the now tcnaney \Va. B to continue for fivo year;; from June, l! l33.

The lease eloes not cover just the land which they held undot 3 S. C. R. SUPREME OOUBT REPORTS 927 their previous tenancy, but included some other fond as well. The amount of rent they were to pay also differed. It was much reduced. Such a docu· ment is not a dPed of attornment but is a document. accepting fresh tenancy. Seetharamiah and Bamakotiah could not in law lease the land in suit to those tenants as they had no title in themselves, they being not heirs of Krishnavenamma. Any lease executed by them created no right. These lessors were not. in actual possession of the land at any time. They could not have, thcreforti, conveyed possession to their tenants. As the new lessees got no title under the lease, their continued possession over the land in s11it could not be possession under the lease on behalf of tho new lessors, especially when their possession can be traced to the valid tenancy under the deed, Ex.

P-6, in favour of Krishnavenamma and will be deemed to he on behalf of legal heir. Seetharamiah and Ramakotiah, therefore, cannot be held to be in possession of the land in suit through their tenants between June, 1933, and some time in 1936, when those tenants were dispossessed by Moka Suhba Rao on behalf of plaiptiff ' No. 1. It follows that the predecessors-in-interest of the defendants have been rightly held to be not in poflsession of the land in suit prior to plaintiff No. 1, who too, had no title, getting possession of the land in suit and that the order und"lr appeal is correct. Appeal dismissed • ..

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