TaxTMI 
TaxTMI 
1999 (7) TMI 693
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....started appropriating the vegetables etc., for himself. Therefore, the plaintiffs paid an amount of Rs. 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 t....
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....once the plaintiffs were not able to prove that the defendant was their watchman on the premise of which the suit was laid, the Court below ought to have dismissed the suit and there is no other alternative for 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 as....
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....5 are the pattadar pass books issued in favour of the plaintiffs 1 to 4 respectively. Even these documents show the suit property which is covered by S.No. 156/4 as dry (meraka). It may be mentioned here that the defendant is assailing these documents on the ground that they 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 pal....
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....or the nature of the property. The evidence on record clearly shows that there has been a hut in the garden land. Regardless of the fact that the hut is either erected by the defendant or by the plaintiffs themselves, the existence of the hut suggests in a way the nature of 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....
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....ent of rents. The defendant has to either succeed or fail only on the basis of his oral evidence and is that of DWs.2 and 3. DWs.2 and 3 have claimed to be the neighbouring tenants to the suit schedule land. A perusal of the plaint schedule and the boundaries given therein, which are not in dispute, 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....
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.... Daily dated 28-1-1981. As can be seen from the evidence of this witness, it is nothing but mere hear say. The document has been marked in this case as Ex.B2. This news item published in this paper shows that there has been an attack on the part of the landlords against the tenant. News item published in a paper is 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 plai....