Decided on October 14,1963

SHAIK GHUDU Respondents


- (1.) This is a plaintiff's Second Appeal directed against the Judgment and Decree of the District Judge of Medak at Sangareddy who, on appeal, reversed the decision of the Munsif at Narayankhed.
(2.) The brief facts leading up to the Second Appeal may now be stated. The plaintiff had leased a parcel of agricultural land to the defendant. He did not pay rent. Therefore the plaintiff-landholder duly terminated the tenancy as contemplated by section 19(2) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, hereinafter referred to as the Act. Thereafter he applied to the Tahsildar under section 28(1) of the Act for eviction of the tenant. An order of eviction was passed by the Tahsildar and the land was taken possession of by the plaintiff on 2nd May, 1958. The tenant did not pay the rent arrear for the three years, 1955 to 1958, to the landlord in spite of the direction to pay by the Tahsildar. Consequently, the plaintiff filed a suit in the Court of the Munsif at Narayankhed for recovery of the rent arrears. The defendant in the main contended that the civil Court had no jurisdiction to try the suit. According to his contention it was only the Revenue Court which had the requisite jurisdiction. The Munsif tried this as a preliminary issue and came to the conclusion that the civil Court had jurisdiction to try the suit. The defendant preferred an appeal to the District Judge of Medak at Sangareddy who entertained it and held that the civil Court had no jurisdiction and that the plaintiff's remedy was to make an application to the Tahsildar under section 28 of the Act. It is against this decision that the present Second Appeal is preferred.
(3.) I must state at the outset that from a mere finding recorded by the Munsif on a preliminary issue the District Judge could not have entertained an appeal. The Munsif had not passed any decree. A mere finding on a preliminary issue relating to jurisdiction does not tantamount to a decree as defined in section 2 (2) of the Code of Civil Procedure. There is no provision of law which provides for an appeal from such a finding. An appeal would have lain if the Munsif had found that he had no jurisdiction and returned the plaint on that ground for presentation to proper Court having jurisdiction ; but that is not the present case. The Munsif held that he had jurisdiction, yet the learned District Judge considered that an appeal to him was competent against that finding. Because he entertained the appeal, the plaintiff has preferred a Second Appeal, but even if the Second Appeal is treated as a revision, it would hardly make an difference to the question for determination I am satisfied that n the interests of sheer justice the technical objection whether a Secpnd Appeal would lie need not be gone into because even if it does not lie, this is a fit case where it sould be treated as a Civil Revision and the delay in filing it condoned in the circumstances of this case. I should therefore deal with the merits. As I already said the District Judge thought that the case was covered by section 23 of the Act. A perusal of the section makes it manifest that it presupposes a subsisting relationship of landholder and tenant. I do not see anything in the section which entitles a erstwhile landholder to apply to a Tahsildar for recovering the arrears of rent due from his erstwhile tenant. Section 28 of the Act provides for a case where the tenancy was terminated for non-payment of rent or any of the other grounds specified in the section, and the landholder applies to the Tahsildar for eviction of the defaulting or erring tenant. The Tahsildar is empowered by terms of the section to order eviction. There does not appear to be any machinery provided in the Act for collecting the arrears of rent from a defaulting tenantwhether it be before eviction or after it. The only penalty for non-payment of rent will be a liability for his tenancy being terminated and consequent eviction under section 28 in case he does not pay the rent arrear as provided by the Act. It is therefore idle to say that the Tahsildar can grant relief to the plaintiff in the instant case where the defendant is no longer his tenant and the Tahsildar is not armed with any power under the Act for passing a rent decree against an erstwhile tenant, much less to enforce such a decree.;

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