ORDER
P.S. Narayana, J.
1. Boggavarapu Subba Rao, the deceased 1st petitioner in the present civil revision petition along with certain other petitioners filed A.T.C. No. 7/88 on the file of Special Officer/District Munsif, Pithapuram for determination of tenancy on the ground of default and also on the ground of subletting and the learned Special Officer/District Munsif, Pithapuram, after recording the evidence of Boggavarapu Madhavakrishna, 3rd petitioner in the A.T.C. as P.W.1 and Nallam Srirama Krishna Murthy, 1st respondent in the said A.T.C. as R.W.1 and Telagamsetti Venkata Rao, 3rd respondent in the said A.T.C. as R.W.2 and after marking Exs.A-1 to A-17 and B-1 to B11 ultimately had arrived at a conclusion that there is no default in payment of maktha, but however recorded finding that the 3rd respondent in the said A.T.C. was inducted by Respondents 1 and 2 as the subtenant in respect of the petition schedule land and hence the petitioners are entitled to the relief of eviction in view of the provisions of Section 13(c) of the A.P. (A.A) Tenancy Act, 1956, in short hereinafter referred to as 'Act'. Aggrieved by the same, the 3rd respondent filed A.T.A. No. 23 of 1995 on the file of III Additional District Judge, Kakinada - the Tenancy Appellate Tribunal, and the petitioners in A.T.C/ landlords filed cross-objections so far as the finding of default is concerned. The Tenancy Appellate Tribunal, on appreciation of the evidence came to the conclusion that Respondents 1 and 2 are the original tenants of the petitioners/landlords in respect of the petition schedule land and they were alone paying maktha as claimed by the petitioners/landlords, and the 3rd respondent is a close relation of Respondents 1 and 2 and though the 3rd respondent claimed to be the cultivating tenant having been directly inducted into possession by the petitioners/landlords, the same was negatived and the findings of the Primary Tenancy Tribunal/Special Officer, had been confirmed. Aggrieved by the same, C.R.P. Nos. 4476 and 4494 of 1998 and CRP (SR) No. 81264/98 were filed and the Revisional Court while exercising powers under Article 227 of the Constitution of India had set aside the order of the Tenancy Appellate Tribunal made in A.T.A. No. 23/ 95, dated 640-1998 and remitted the matter for fresh consideration in the light of the observations made in the said order. However, C.R.P.S.R. No. 81264/98 was dismissed, without costs. On remand, the learned III Additional District Judge, Kakinada/Tenancy Appellate Tribunal after marking additional documents, Exs.A-48 to A-53 and Exs.B-12 to B-15, ultimately had allowed the A.T.A declaring the 3rd respondent as the cultivating tenant in relation to the petition schedule land by order dated 12-4-2000. Aggrieved by the same, the 1st petitioner/landlord in the A.T.C had preferred the present civil revision petition.
2. During the pendency of the civil revision petition, the said Boggavarapu Subba Rao died and Boggavarapu Gokula Krishna, 2nd petitioner is brought on record as legal representative of the deceased petitioner by order dated 14-2-2003 made in C.M.P. No. 1728/2003. That is how the present petitioner is prosecuting the litigation.
3. Sri V.L.N.G.K. Murthy, the learned Counsel representing the Revision petitioner made elaborate submissions on the aspect of the ground of sub-tenancy and had contended that no doubt the matter was remitted by this Court for the purpose of deciding whether the 3rd respondent is the cultivating tenant or not in the light of Exs.B-3 to B-8, but however, the learned Counsel would maintain that Exs.B-3 to B-8 do not reflect the fact that the 3rd respondent is a cultivating tenant within the meaning of Section 2(c) of the Act. The learned Counsel also had taken this Court through the relevant entries and explained that at the best, it can be said that the 3rd respondent was in possession of the subject land and nothing more and by that it cannot be said that he is the cultivating tenant. The learned Counsel also would maintain that as per the Adangal, the 3rd respondent is shown as the encroacher and the person who raised the crops and at no point of time the 3rd respondent was shown as the cultivating tenant and this aspect was not appreciated by the Tenancy Appellate Tribunal in proper perspective. The learned Counsel also made elaborate submissions in relation to the additional evidence - Exs.A-48 to A-53 and B-12 to B-15 entertained by the Tenancy Appellate Tribunal and also had pointed out the findings recorded in this regard and had contended that in such an event, in the interest of justice, the only possible course which could have been adopted by the Tenancy Appellate Tribunal should have been to remit the matter to the Primary Tenancy Tribunal to afford opportunity to both the parties and instead declaring the 3rd respondent as the cultivating tenant, definitely is bad in law. The learned Counsel also made elaborate submissions in relation to Exs. A-7 and A-9 and the absence of reply to these letters which would definitely suggest that Respondents 1 and 2 alone are the cultivating tenants and not the 3rd respondent and for reasons best known a stand had been taken that the 3rd respondent is the cultivating tenant. The learned Counsel also pointed out to the acceptance of rent during the pendency of the eviction proceedings and had submitted that the findings recorded by the Tenancy Appellate Tribunal relating to declaration that the 3rd respondent is the cultivating tenant are totally unsustainable and the reason that the lease was not shown by the landlord in the declaration may not be very relevant in the facts and circumstances of the case. The learned, Counsel further submitted that inasmuch as there is total non-consideration of Exs. A-7 and A-9, in particular, it is a fit matter where a remand order may have to be made. The Counsel also had placed reliance on Estralla Rubber v. Dass Estate (P) Ltd., : AIR2001SC3295 , and also Sugarbai M. Siddiq v. Ramesh S. Hankare, : (2001)8SCC477 , to explain the scope, ambit and interference by this Court under Article 227 of the Constitution of India. The learned Counsel also relied upon certain other decisions too, to substantiate his contentions.
4. Sri N. Vijay, Counsel representing the Respondents 1 and 2 had just taken a stand totally sailing with the stand taken by the 3rd respondent.
5. Sri Ramchander Rao, the Counsel representing the 3rd respondent had taken this Court through the entries made in the Adangals and had submitted that the findings recorded by the Tenancy Appellate Tribunal are well justified in this regard. The learned Counsel also submitted that the mere non-reply to Exs.A-7 or A-9, as the case may be, by itself may not amount to accepting the fact that Respondents 1 and 2 are the cultivating tenants. The learned Counsel made elaborate submissions relating to non-reply to a notice or an assertion and had contended that it is not the law that for every frivolous and vexatious notice, merely because reply is not given, it cannot be inferred that the contents in the said notice are true or at any rate, automatically adverse inference cannot be drawn. The learned Counsel placed reliance on certain decisions also in this regard. The learned Counsel also would maintain that the ingredients of subletting had not been proved and in the light of the overwhelming documentary evidence available on record, the documents received at the appellate stage by the Tenancy Appellate Tribunal may not be much relevant and hence on that ground, an order of remand cannot be made. The Counsel also would maintain that at any rate Exs.A-7 and A-9 would not throw much light at all and will fall definitely into insignificance in the light of Exs.B-3 to B-9. The learned Counsel also would maintain that the author of the account books had not been examined and the neighbours were not examined and hence in the absence of any evidence, the Tenancy Appellate Tribunal had arrived at the correct conclusion in the light of the revenue entries that the 3rd respondent is the cultivating tenant and not Respondents 1 and 2 as contended by the landlords. The Counsel in a meticulous fashion had taken this Court through all the findings recorded by the Tenancy Appellate Tribunal and had cited several decisions relating to the limitations imposed on this Court while exercising the powers under Article 227 of the Constitution of India.
6. Heard both the Counsel and perused the findings recorded by the learned Special Officer/Primary Tenancy Tribunal and the learned III Additional District Judge-cum-Tenancy Appellate Tribunal, the order made by the Revisional Court remanding the matter to the Tenancy Appellate Tribunal and the findings recorded by the Tenancy Appellate Tribunal reversing the order of the Primary Tenancy Tribunal and also the oral and documentary evidence adduced before the Primary Tenancy Tribunal and the documents marked at the appellate stage after the matter is remanded to the Tenancy Appellate Tribunal.
7. This is a case where the landlords were initially successful on the ground of sub-letting before the Primary Tenancy Tribunal and the Appellate Tenancy Tribunal as well. But however, the Revisional Court had remitted the matter to the Tenancy Appellate Tribunal for the purpose of deciding whether the 3rd respondent is the cultivating tenant or not in the light of certain documents.
8. Before discussing the other factual details it may be appropriate to have a look at the respective pleadings of the parties in A.T.C. No. 7/88. The landlords had pleaded in the said A.T.C. as follows:
The 1st petitioner is the father of the 2nd and 3rd petitioners. The petitioners 2 and 3 were divided from their father prior to the partition. The 1st petitioner was the manager of the Hindu undivided joint family. The 2nd petitioner died leaving behind him, his mother, wife, one son and one daughter. Originally, the joint family property consisted of Acs.9-64 cents in S.No. 64, Acs.2-76 cents in S.No. 174/1 and Acs.26-07 cents in S.No. 145 in Gollaprolu Village. The 1st and 2nd respondents approached the 1st petitioner and purchased the entire property and entered into an agreement of sale with the 1st petitioner and took possession of the land in favour of their nominees. Subsequently, the Government of Andhra Pradesh promulgated an Ordinance prohibiting alienation of the land. On the advice of the legal advisors of both parties, the 1st petitioner and the Respondents 1 and 2 cancelled their agreement of sale and kept it with their legal advisors. In 1972, the 1st petitioner and his son partitioned their joint family properties. In the said partition the land in S.No. 64 to an extent of Acs.9-64 cents fell to the share of 1st petitioner's second son by name B. Gopi Krishna and an extent of Acs.2-76 cents in S.No. 174/1 and Acs.10-47 cents in S.No. 145 fell to the share of the 2nd petitioner. An extent of Acs.9-55 cents in S.No. 145 fell to the share of the 3rd petitioner and after cancellation of the agreement, the 1st and 2nd respondents took the entire land on lease on an annual maktha of the bags payable by 15th January every year. The respondent used to pay maktha and obtain receipts from the petitioners. In 1976, the Respondents 1 and 2 purchased Acs.9-65 cents in S.No. 64 from the second son of the 1st petitioner in the name of one Rednam Venkatarao, son-in-law of the 1st respondent and Addanki Venkatarao, the relative of the 2nd respondent. Thereafter, the yearly maktha was reduced to 105 bags for the remaining land. Subsequently, the maktha was enhanced to 125 bags. The respondent sent a demand draft for Rs. 16,100/- through their clerk, Allamraju Someswararao for the year 1985-86 on 5-3-1986 promising that the 1st and 2nd respondents would go to Kakinada in the evening but they failed to meet the 1st petitioner on that date. On 10-3-1986, the 1st petitioner gave a registered letter intimating that the amount was received towards maktha payable for the year 1985-86 without prejudice to the rights and contentions of the petitioners.
9. It was further pleaded in the A.T.C. that the 1st and the 2nd respondents sent another draft for Rs. 18,200/- on 19-2-1987 by post towards the maktha for 1986-87 and again, the petitioners informed by letter on 1-3-1988 that the said amount was received without prejudice to their rights and contentions. The 1st petitioner received a letter from the 3rd respondent on 17-3-1988 claiming himself to be the tenant and a draft for Rs. l6,100/- in favour of the 1st petitioner was sent. The 1st petitioner received the same on 7-4-1988 and on enquiry the petitioners came to know that the 1st and the 2nd respondents subleased Acs.26-07 cents in S.No. 145 to the 3rd respondent and Acs.2-76 cents in S.No. 174/1 to the 4th respondent. It was further pleaded that the petitioners never leased out the land to the 3rd respondent, nor gave their consent to the 1st and the 2nd respondents to sub-lease the land to any other person. The petitioners, till about the fourth week of March 1988, are under the impression that the Respondents 1 and 2 are only cultivating the lands and paying the maktha. As the Respondents 1 and 2 subleased the lands, the petitioners are entitled to seek eviction of the Respondents from the petition schedule land. The petitioners also came to know that without their consent. or knowledge, the respondents have taken an electric connection from the Electricity Department to the schedule property. It was further pleaded that, as already submitted, the Respondents 1 and 2 have not paid maktha in kind for the years 1985-86 and 1986-87 but only sent drafts for Rs. 16,100/-and Rs. 18,200/- and they were received without prejudice to their rights and contentions. The amounts sent do not represent the correct market value prevailing at that time. Further, the Respondents 1 and 2 failed to pay maktha payable for the year 1987-88 due on 15-1-1988 and as such the tenants are wilful defaulters having committed default wilfully by not paying the maktha in kind or its correct value by the due date or within the time granted by the Act and therefore the petitioners are entitled to seek eviction of the respondents.
10. In the counter filed by Respondents 1 and 2, it was pleaded that Respondents 1 and 2 are not Hindu Joint Family members and they are not the tenants under the petitioners. The question of sub-lease to the 3rd respondent does not arise. The 4th respondent has nothing to do with the plaint schedule land. The 3rd respondent had been in possession and enjoyment of the plaint schedule land since 1980 as cultivating tenant. If the Respondents 1 and 2 do not admit partition, there is no tenancy contract between the petitioners jointly or severally. There was no privity of contract between the petitioners and the Respondents 1 and 2 at any time. The agreement of sale was not cancelled and there was no relation between the petitioners and Respondents 1 and 2 as landlords and tenants.
11. The 3rd respondent who is virtually contesting the litigation had denied all the allegations. It was no doubt admitted that Respondents 1 and 2 contacted the 1st petitioner for purchase of land. It was further pleaded that the 3rd respondent is the tenant holding over of the property and had been enhancing the rent from time to time as agreed between the 1st petitioner and the 3rd respondent and the 3rd respondent had been paying rent without any arrears. It was also pleaded that in view of the amendment of the A.P. Tenancy Act, confirming permanent rights on the tenants in possession of the property as on 1-7-1980, the present application was filed maliciously and with false allegations. The alleged date of partition was not mentioned. The 3rd respondent does not admit the alleged partition and the extent of the shares allotted. It was also further pleaded that it is not correct to state the 1st and the 2nd respondents took possession of the entire land on lease on an annual maktha of 150 bags to the knowledge of the 3rd respondent. The Respondents 1 and 2 never paid any maktha, nor they were in possession of the petition schedule land. The 3rd respondent alone had been paying the maktha or its value to the petitioners, but he was not given any receipts. In 1988, the petitioner maliciously wanted to put an end to the tenancy of the 3rd respondent and did not receive the rents, the 3rd respondent obtained a draft and sent it as the petitioners were postponing the receipt of the same. The 3rd respondent subsequently sent the draft which was returned and ultimately when good sense prevailed, Boggavarapu Gokula Krishna claiming to be a vakalat holder received the draft dated 9-5-1988 on 12-7-1988. It was further pleaded that when money was tendered, none of the petitioners came forward to receive the same nor did they inform that they are going to receive the same without prejudice to their contentions. It was further pleaded that the maktha of 105 bags was enhanced to 125 bags which the petitioners were not entitled to do so under law. The 3rd respondent is entitled to the benefits of Andhra Tenancy Act. The petitioners being businessmen and being well versed in Court affairs, fraudulently played fraud and got the maktha enhanced which was paid by the 3rd respondent.
12. It was further pleaded that Respondents 1 and 2 sent a draft for 1985-86 on 5-3-1986 promising to come to Kakinada in the evening through one A. Someswararao is not correct. The Respondents 1 and 2 have nothing to do with the land or the cultivation of the land. The 3rd respondent is the tenant and he is the person in possession of the property cultivating the same. The 3rd respondent is not aware of any alleged registered letter purported to have been addressed on 10-3-1986. For the years 1986-87 the Respondents 1 and 2 did not send the draft to the 1st petitioner as alleged in the eviction petition. Some times, the 1st petitioner was informing to take the paddy and some times he was asking to sell the paddy and pay money and it is not true that any maktha is payable by any particular date i.e., by 15th January as alleged in the petition. The other petitioners 2 and 3 had never informed nor they have any right to inform that the receipt of the draft on 1-3-1988 is received without prejudice to the contentions. It was pleaded that the allegations in para 10 of the petition are mischievous and on 1-3-1988 they could not have sent a letter for the maktha of 1986-87. The petitioners are fully aware that the 3rd respondent is the cultivating tenant and the allegation that on 17-3-1988 a letter was curiously sent by the 3rd respondent enclosing the draft is not correct. They are fully conscious of the fact that the 3rd respondent is the actual tenant of the property. It was pleaded that a new theory is sought to be set up that the 3rd respondent is not the tenant and the Respondents 1 and 2 only are the tenants. There is no relationship of landlord and tenant between the Respondents 1 and 2 and the petitioners. It was asserted that it is the 3rd respondent who is the tenant and the parties are governed by the provisions of Andhra Tenancy Act.
13. It was further pleaded that the allegations that the petitioners made enquiries and they came to know that Respondents 1 and 2 sub-leased the property to the 3rd respondent and Acs. 2-76 cents to the 4th respondent are false and materially mischievous and vague and they did not allege as required under law as to what enquiries they made and who informed them about the alleged sub-lease. The Respondents 1 and 2 were never tenants and they never sub-leased the property. It is always the 3rd respondent who is in possession of the property. It was further pleaded that the petitioners are contending that they never leased the property to the 3rd respondent in order to seek eviction on the ground of alleged sub-lease. The further allegation that in the fourth week so March, 1988 the petitioners were under the impression that the Respondents 1 and 2 are only cultivating the lands and paying the makthas is an innovation. The documents bear out the fact that Respondents 1 and 2 were never the lessees. The allegation that electricity connection was obtained by the respondents for schedule property was denied as they have nothing to do with the petitioners. The petitioners never wanted the paddy to be taken and the 1st petitioner was always taking cash avoiding to take delivery of the paddy. It was specifically pleaded that there were no arrears and that the contra allegations are false. It was also pleaded that even in the year 1988-89 the paddy was ready and if the petitioners so choose they can take the paddy or else the prevailing value in the local market will be deposited into Court. It was further pleaded that amount tendered was the correct market value prevailing at that time considering the nature and the variety and condition of the paddy. It was denied that the Respondents 1 and 2 failed to pay the maktha payable for 1987-88 by 15-1-1988. The Respondents 1 and 2 not liable to pay the maktha as they were not the tenants. When there was no relationship of landlord and tenant between the petitioners and Respondents 1 and 2 the question of default or eviction does not arise. It was also pleaded that the Tenancy Court has no jurisdiction to entertain the application when Respondents 1 and 2 are not tenants and the petitioners must work out their remedies in a Civil Court. The petitioners cannot deny the tenancy of the 3rd respondent and cannot sell the property to anybody after 1980. It was also pleaded that the 3rd respondent is prepared to pay the price according to law and purchase the property and they cannot sell the property to Respondents 1 and 2 or their nominees after 1980 without first offering to the 3rd respondent. It was further pleaded that the 3rd respondent is moving the Tenancy Authority for fixation of the price and also the rent payable on the property. The 3rd respondent reliably came to know that the petitioners are trying to sell the property and with an intention to somehow evict the 3rd respondent filed the present application with false allegations. It was pleaded that there were no arrears and the petitioners are not entitled to the relief of possession either on a question of fact or on question of law and as such the application has to be dismissed with exemplary costs declaring the 3rd respondent as a tenant.
14. As already referred to supra, before the Special Officer/Primary Tenancy Tribunal, the 3rd petitioner was examined as P.W.1, the 1st respondent was examined as R.W.1 and the 3rd respondent was examined as R.W.2 and the documentary evidence Exs.A-1 to A-47and B-1 to B-11 were marked. The Special Officer/Primary Tenancy Tribunal had framed the following Points for consideration:
(1) Whether Respondents 1 and 2 are cultivating tenants under the petitioners in respect of the petition schedule property?
(2) Whether the 3rd respondent is the cultivating tenant under the petitioners as contended by the 3rd respondent?
(3) Whether the 3rd respondent is the sub-tenant inducted by Respondents 1 and 2 as contended by the petitioners? .
(4) Whether the respondent committed default in payment of maktha for the years 1985-86 to 1987-88?
(5) Whether the petitioners are entitled for the eviction of the respondents from the plaint schedule property?
On appreciation of the oral and documentary evidence, the Primary Tenancy Tribunal had negatived the ground of default in payment of maktha, but had granted the relief on the ground of sub-letting. Aggrieved by the same, as already aforesaid, A.T.A. No. 23/95 along with Cross Objections were preferred on the file of in Additional District Judge, Kakinada/Tenancy Appellate Tribunal, which had initially confirmed the order made by the Primary Tenancy Tribunal and aggrieved by the same, the matter was carried by way of three Revisions i.e., C.R.P. Nos. 4476, 4495/98 and C.R.P.S.R. No. 81264/ 98 and C.R.P. Nos. 4476 and 4495/98 were allowed by setting aside the order made in A.T.A. No. 23/95 and remitting the matter again to the Tenancy Appellate Tribunal. However. C.R.P.S.R. No. 81264/98 was dismissed, without costs. It may be appropriate to have a look at the relevant portion of the order in the aforesaid C.R.Ps. by virtue of which the Tenancy Appellate Tribunal had made the impugned order. The relevant portion of the order in C.R.P. Nos. 4476 and 4495/98 dated 29-12-1998, reads as hereunder:
'Thus, it is absolutely clear that the appellate authority completely ignored Exs.B-2 to B-8 Adangal extracts for the years 1392 Fasli to 1398 Fasli. Those documents are not at all taken into consideration by the appellate authority. It is not possible for this Court to visualize as to what view the appellate authority would have taken had it taken into consideration the documents Exs.B-2 to B-8, Adangals. Any further investigation by this Court would amount to substituting this Court's opinion for that of the appellate authority. Such a course is not permissible for the reasons already indicated. At the same time, the finding of the appellate authority rejecting; the claim of the third respondent that he is the cultivating tenant is totally vitiated for the reason of non-consideration of the material and evidence available on record. The question as to whether the third respondent is a cultivating tenant requires redetermination by the appellate authority by taking into consideration the entire, material available on record, including Exs.B-2 to B-8 Adangals. The matter is required to be remitted to the appellate authority for fresh consideration in the light of the observations made in this order.'
In the light of the remand made to the Tenancy Appellate Tribunal, the Tenancy Appellate Tribunal had marked Exs.A-48 to A-53 and B-12 to B-15 arid had Ultimately allowed the Appeal declaring the 3rd respondent in the A.T.C. as the cultivating tenant. It may be appropriate to have a look at certain portions of the order imugned in the present civil revision petition. At para 9 it was stated:
'The appellant got filed I.A.367/99 to receive electricity card and pass book issued by file Government. The same are marked as Exs.B-12 and B-13. The appellant also filed I.A.700/99 to receive No. 3 Adangal. The same is allowed and the same is marked as Ex. B-14. Respondents 1 and 2 got filed I.A.705/99 to send for declaration in L.C.C.894/Tuni/75 pertaining to land ceiling declaration of Nallam Srirama Krishna Murthy and Nallam Goyindarao. The same was allowed and the land ceiling declaration was received in this Court and the same is marked as Ex.B-15. The landlords filed I.A.740/99 to receive pattadar pass book and title deed books pertaining to the schedule lands. The said petition is allowed and the said documents are marked as Exs.A-48 to A-53.'
At para 11, the Tenancy Appellate Tribunal also had observed:
'......The appellant also got filed ryot pass book and he is shown as tenant for the schedule land and Boggavarapu Subbarao was owner thereof, which is Ex. B-12. Ex. B-13 is the electricity consumption card for 10 H.P. motor. However, Exs. B-13, B-12 and B-13 were filed subsequent to the filing of the appeal and that too after remand. The landlords also got filed ryot pass books and title deed pass books which are marked as Exs. A-48 to A-53 which are also filed subsequent to the remand of this appeal, in this Court. They show that Boggavarapu people are the owners of the land. The pass books do not show the names of even Respondents 1 and 2 or any other persons. As seen from the above material on record, the appellant is in possession of the schedule land ever since 1392 Fasli as per revenue records. The appellant is contending that he is cultivating the land since 20 years or so. The appellant is paying maktha and the landlords are receiving the same. Thus the landlords are impliedly admitting the tenancy of the appellant. If the plea of landlords that Respondents 1 and 2 are their tenants, the landlords would have certainly shown their names in their land ceiling declarations. Further, if the case of landlords that Respondents 1 and 2 are tenants, the Respondents 1 and 2 who are declarants should have shown these lands in their land ceiling declarations. But Ex.B-15 land ceiling declaration of the Respondents 1 and 2 does not find place these schedule lands. Hence, the plea of landlords is falsified by the documentary evidence.........'.
On a cursory glance of the findings recorded by the Tenancy Appellate Tribunal it is clear that the additional documents which were marked at the appellate stage had been taken into consideration and findings had been recorded thereon. It is not in controversy that relating to Exs.A-7 and A-9 letters, there was no reply. It is also not in controversy that these documents were not discussed by the Tenancy Appellate Tribunal and no doubt it is explained by the Counsel representing the 3rd respondent that the non-consideration of these documents cannot be said to be fatal in any way since it is not going to alter the situation. The Counsel also had placed strong reliance on Union of India v. Watkins Mayor and Co., : AIR1966SC275 , to substantiate the contention that merely because there is no reply it cannot be said that the contents in the said letters should be deemed to have been admitted. In C. Hanumaiah v. K. Venkateswarlu, 1971 (1) An.WR 65, it was held at para 10:
'The conclusion arrived at by the lower Court indicates that it did not bear in mind the provisions of Sub-section (2) of Section 3 of the Evidence Act. A fact is said to be proved when after considering the matters before it the Court believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exits. What are the matters which the Court had before it upon which the decision has to be taken? The plaintiff sent a notice of demand under Exhibit A-4 on 25th February, 1966, which did not evoke a contradiction or denial of the defendant. In that notice, the plaintiff asserted that there was a part payment of Rs. 2 make on 31st August, 1964. This assertion was very crucial for the maintainability of the action. The defendant, however, allowed the statement to remain unchallenged. What is the inference to be drawn? And, does not the omission of the defendant make it highly probable that the endorsement was true? The trial Court completely overlooked the effect of Exhibit A-4 and its bearing on the point whether a prudent man ought under circumstances act on the supposition that the endorsement was true.'
In the case of non-reply to a notice or non-reply to a particular assertion always necessarily adverse inference need not be drawn and the circumstances may be well explained for such in action in not replying. However, that may be a very crucial and essential aspect in certain cases and hence the Courts cannot also ignore the same. Such an aspect may have to be considered in the light of the other evidence available on record. To say as a matter of rule that there is no need to give a reply at all to every frivolous or vexatious notice would amount to prejudging that in every matter, the assertions made either in the notices or the letters or correspondence would be frivolous and vexatious and this would be a very broad proposition and cannot be said to be a valid defence in all cases since each case may have to be judged on the facts and circumstances and a general proposition cannot be laid down in this regard. Several factual details, the nature of litigation, the conduct of the parties and other relevant evidence are certain of the essential factors to be considered whether such non-replying would have any bearing in giving a finding in relation to such a fact.
15. The Act - Act 18 of 1956, is an Act to provide for the payment of fair rent by cultivating tenants and for regulating the relations of landlords and cultivating tenants of agricultural lands and for matters connected therewith in Andhra Area of the State of Andhra Pradesh. Section 2 of the Act deals with Definitions and Section 2(c) defines cultivating tenant as:
'In this Act, unless the context otherwise requires, 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) defines landlord as:
'In this Act, unless the context otherwise, requires, 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.'
Section 13 of the Act deals with termination of tenancy and Section 13(c) of the Act makes sub-letting of land a ground for eviction. Section 16(2) of the Act specifies that against any order passed by the Special Officer under this Act, an Appeal shall lie to the District Judge having jurisdiction within 30 days of the passing of the order and the decision of the District Judge on such appeal shall be final. Hence, it is clear that an order made in Appeal by the Tenancy Appellate Tribunal under Section 16(2) of the Act attains finality and in this view of the matter, the Appellate Authority is expected to be more careful and cautious in deciding the matter as a final Court of fact.
16. The A.P. (A.A) Tenancy Rules, 1980, hereinafter in short called as 'Rules' were framed in exercise of the powers conferred by Section 19 of the Act and in supersession of the Andhra Tenancy Rules, 1957, Rule 8 of the Rules dealing with Appeal reads:
(1) Every appeal under Sub-section (2) of Section 19 shall be in writing and shall set forth concisely the grounds thereof and shall be presented in person or by agent or be sent by registered post to the District Judge or in his absence to the Head Ministerial Officer of his Office.
(2) Every such appeal shall bear a Court fee label of Rs. 3/- and shall, in addition bear also a Court fee label or labels of the value calculated in accordance with the scale prescribed in the Schedule towards the process fee for service of notice on the respondent or respondents and shall be accompanied by an authenticated copy of the order of the Special Officer appealed against.
(3) Every such appeal shall also be accompanied by a spare copy or sufficient number of spare copies thereof for service on the respondent or respondents mentioned therein.
(4) In computing the period of thirty days specified in Sub-section (2) of Section 16 the time taken for obtaining a copy of the order of the Special Officer shall be excluded.
Rule 9 of the Rules reads as hereunder:
(1) On receipt of an appeal under Rule 8 the District Judge shall fix the date on which and the time and the place at which, the appeal shall be heard and shall issue notice thereof to the appellant or the appellants and to the respondent or the respondents mentioned in the appeal:
(2) The notice referred to in Sub-rule (1) shall be in Form VII and shall in the case of a notice to the respondent be accompanied by a copy of the appeal.
(3) The notice referred to in Sub-rule (1) shall be served in the same manner as the notice referred to in Sub-rule (2) of Rule 4.
(4) The respondent shall be entitled to file a counter to the appeal within a period of one month from the date of service of the notice referred to in Sub-rule (1) or within such further period as the District Judge may for sufficient reasons allow.
(5) On the date fixed for the hearing of the appeal under Sub-rule (1) or on any other date or dates to which the hearing may be adjourned the District Judge shall give a reasonable opportunity to the parties to state their case and adduce their arguments and shall thereupon pass such orders as he deems fit.
(6) Every order passed by the District Judge shall be pronounced in open Court;
(a) on the date to which the proceedings may have been adjourned or if that be not practicable;
(b) on any date in respect of which notice has been given to the parties.
(7) The order referred to in Sub-rule (6) shall be in writing and shall be served in the same manner as the order referred to in Sub-rule (6) of Rule 4.
(8) The District Judge may, pending disposal, of the appeal stay the orders of the Special Officer appealed against.
Rule 9(5) of the Rules specifically says that on the date fixed for the hearing of the appeal under Sub-rule (1) or on any other date or dates to which the hearing may be adjourned the District Judge shall give a reasonable opportunity to the parties to state their case and adduce their arguments and shall thereupon pass such orders as he deems fit. Rule 18 dealing with Nature of proceedings reads as hereunder:
(1) All proceedings before the Special Officer or the District Judge under the Act shall be summary and shall be governed, as far as may be by the provisions of the Code of Civil Procedure, 1908.
(2) Any party shall, in any proceeding before the Special Officer or the District Judges, be entitled to be represented by his agent or legal practitioner.
17. It is no doubt true that all proceedings before the Special Officer and District Judge under the Act are of summary nature and shall be governed, as far as may be, by the provisions of the Code of Civil Procedure. Order 41, Rule 27 C.P.C. deals with production of additional evidence in Appellate Court. Order 41, Rule 28 C.P.C. deals with mode of taking additional evidence and Order 41, Rule 29 C.P.C: dealing with Points to be defined and recorded specifies:
'Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.'
It is no doubt true that the tenancy proceedings are of summary nature. But, however, when the Tenancy Appellate Tribunal had chosen to entertain additional documentary evidence and also had chosen to record findings on the strength of such documentary evidence, it can be inferred that the Tenancy Appellate Tribunal was satisfied that these documents were crucial or at least relevant for the purpose of adjudicating the dispute. In such a case, instead of deciding such aspects which may have to be further proved by letting in necessary oral evidence, the better course would have been to remit the matter again to the Special Officer/Primary Tenancy Tribunal. That apart, much comment had been made in relation to non-examination of the author of the account books in the context of proof of the entries in the account books and also the non-examination of the neighbours for the purpose of establishing the ground of sub-letting. Reliance also had been placed on C.B.I. v. V.C. Shukla, : 1998CriLJ1905 and Manish Dixit v. State of Rajasthan, AIR 2001 SC 93, in the regard.
18. It is no doubt true that except the evidence of P.W.1, there is no evidence on record. Equally so, even on the part of the 3rd respondent. Except the evidence of the 1st respondent as R.W.1 and the evidence of the 3rd respondent as R.W.2, absolutely there is no evidence at all let in on behalf of the contesting respondent. The whole approach of the Tenancy Appellate Tribunal in reversing the order of eviction made by the Primary Tenancy Tribunal is on the ground of want of sufficient evidence and also on certain omissions. While deciding these factual details, I am of the considered opinion that necessary oral evidence also may be essential to explain these factual details and hence in the light of the observations made relating to the non-examination of the author of the account books and also the non-examination of the neighbours and non-consideration of Exs. A-7 and A-9 and also receiving the additional documentary evidence and considering the same and recording findings, I am thoroughly satisfied that the impugned order cannot be sustained. No doubt, submissions in detail were made by both the Counsel relating to the powers of this Court and the limitations in exercise of such power under Article 227 of the Constitution of India. The principle relating to exercise of powers and the limitations while exercising powers under Article 227 of the Constitution of India are well settled and they need not be repeated again. In the light of the illegality committed by the Tenancy appellate Tribunal, I am of the considered opinion that the impugned order cannot be sustained.
19. Accordingly the impugned order dated 12-4-2000 made in ATA No. 23/95 by the III Additional District Judge, Kakinada is hereby set aside and the matter is remanded to the Primary Tenancy Tribunal/ Special Officer-cum-District Munsif, Pithapuram for the purpose of affording opportunity to both the parties to let in oral evidence to substantiate their respective contentions on the matters referred to supra and, decide the matter afresh in accordance with law. The civil revision petition is allowed to me extent, indicated above. Inasmuch as this Court, is remanding the matter to the Primary Tenancy Tribunal on the ground of a legal flaw, this Court makes no order as to costs.
20. It is needless to say that since it is a long drawn litigation, the matter, requires early disposal.