(1) By this petition, the petitioner seeks to quash the order of the revenue divisional officer, kowur, confirming the order of eviction passed by the tahsildar, polavaram, under the andhra tenancy act (xviii of 1956) (hereinafter called the act) for default in payment of rent within the period prescribed by section 13 of the act.

(2) The petitioner alleges that he and his brother, the second respondent, obtained a lease of two acres of land in gutala village and executed a visabadi muchilika on the 18th january, 1956 for a period of one year on a rental of rs. 250 and that they continued to be in possession till the date of eviction under the provisions of the act and since then has been paying rent regularly every year, which rent for the current year is payable in march, 1961. It is averred that the tahsildar had no jurisdiction to entertain the application of the first respondent inasmuch as the first respondent had categorically stated that the petitioner had vacated the land at the end of the statutory period of three years under section 10 of the act and that later the petitioner had got back into possession because of an amendment to the act extending the period from three to four years. In these circumstances, the petitioner contends that he was a trespasser and consequently the andhra tenancy act would not apply and the proper remedy for the first respondent is to evict him by way of a suit. Secondly, he contends that even if the tashsildar had jurisdiction to entertain the first respondent's application, the landlord having accepted the rent after the period of grace provided in the act, he was estopped from contending that the rent was not paid in time. In view of both these contentions, he prays for the issue of a writ of certiorari quashing the orders of the revenue authorities evicting him from the land.

(3) Learned advocate for the first respondent, on the other hand, alleges in his counter that the petitioner has not raised the question of jurisdiction before the tahsildar at all and not having urged it there, he cannot be permitted to raise it now in this writ petition. The answer to this by the learned advocate for the petitioner is that he did raise it before the revenue divisional officer in appeal and consequently it cannot be said that he has not raised the question of jurisdiction before it is urged in this court. At any rate, when there is total inherent lack of jurisdiction, learned advocate contends, there can be no objection to the high court entertaining a writ and affording a relief.

(4) On the question of arrears of rent, learned advocate for the first respondent submits that the question of estoppel does not arise in cases where the statute re - gulates the relationship of landlord and tenant and since there is no application of section 112 of the transfer of property act to the provisions' of the act, the principle of waiver or approbation and reprobation cannot be applied.

(5) Before dealing with the several contentions, it may be stated that no question of jurisdiction of the tahsildar was raised before him by the petitioner, nor did the first respondent take up the plea that the petitioner was a trespasser. The question of jurisdiction was, however, raised in appeal before the revenue divisional officer who rejected it on the ground that the appellant - petitioner admitted that he was continuing to be a tenant of the first respondent enjoying the cultivation of the land, without interruption paying rent to the first respondent. In these circumstances, the revenue divisional officer held that there was no merit in the contention that the tenancy was not subsisting and that the first respondent should be considered as a trespasser. The petitioner does not deny that he stated in his counter before the tahsildar that he did not surrender possession as alleged by the first respondent in march, 1959 after the termination of the three years' period of the lease, but that he has been continuing to be a tenant without interruption. To put it in his own words, he says :

"the respondents did not surender possession of the schedule land at the end of february, 1959. It is a deliberate falsehood to say that the petitioner ever cultivated the land. The petitioner having known that the respondents ploughed and prepared the seed - bed and sowed ' krishnakatukulu 'paddy in the land, he concocted mischievously that it was he who has done that. The seedlings raised by the respondents are ready for transplantation and the transplantation will be done as and when water will be available to the land for such operation."

(6) Apart from the question whether the petitioner surrendered possession and took back possession, regarding which both the authorities below seem to have assumed that he was a cultivating tenant and that he was only liable to be evicted for nonpayment of rent in time, the subsequent amendment of the act, even assuming that the petitioner had vacated the land, entitled him to get back into possession ; as such he would still be a cultivating tenant. The first respondent did not resist the attempt of the petitioner to get back into possession and has treated him as a cultivating tenant even for the subsequent period after he had, according to the first respondent's version, re - entered possession. In view of the subsequent amendment, in law, the petitioner was a cultivating tenant. If so, the revenue authorities would have jurisdiction to entertain applications for eviction. In my view, the contention of the learned advocate for the petitioner that there is an inherent lack of jurisdiction in the tahsildar and the revenue divisional officer for entertaining the petition of the first respondent must be rejected.

(7) With respect to the second contention, viz, that there was a waiver, it may be stated that according to the petitioner himself he was in default for one year not having paid the rent within the prescribed period, viz. , within the grace period after the due date. Though that finding is not challenged, it is submitted that the first respondent accepted the rent even after the expiry of the period and consequently under the general law that a person cannot be allowed to approbate and reprobate, once the first respondent accepted the amount, he is deemed to have condoned the default and as such estopped from raising the contention that the petitioner is at default. The cases cited by the learned advocate, viz. , sunder lal v. Ram krishna, air 1960 all. 544. Subbamma v. Subbiah, (1958) 1 an. W. R. 542 : a. I. R, 1958 a. P. 483. Are cases under the general law and have no reference to a special statute which is designed to restrict the rights that existed and create new rights which did not exist, in furtherance of a particular policy. The andhra tenancy act is a piece of legislation in respect of tenancies of agricultural lands analogous or akin to rent control act pertaining to building, i. E. , the madras buildings (lease and rent control) act, etc. The policy of the legislature in relation to eviction, quantum of rent, period of tenancy or lease, is to regulate the rights which a landlord has and to protect the tenant subject to certain terms and conditions prescribed under the act itself. Where the ordinary rights of property are thus regulated and restricted, the terms subject to which these restrictions have been enacted must be considered strictly. As observed by my learned brother, seshachelapati, j. , in veerabhadrayya v. Tahsildar, (1960) 1 an. W. R. (n. R. C.) 18 : 1960 a. L. T. 227. In respect of the andhra tenancy act at page 229 :

"the provisions of this act are mandatory. While conferring certain rights on the tenants, they, to a large extent, abridge the rights of the landlord. In such a case rights and liab ilities of the landlords and tenants alike must be strictly construed. Section 13 (a) gives the landlord a right to ask for the eviction of a tenant, who defaulted in the payment of the rent due."

(8) In these circumstances, unless there is anything to the contrary in the statute itself, it is not permissible to import the provisions of other statutes, such as the contract act or the transfer of property act, to determine the rights of the parties.

(9) On the other hand, in this statute, section 17 has been enacted to make the provisions of that act applicable notwithstanding anything inconsistent therewith containing in any pre - existing law, custom, usage, agreement or decree or order of a court. Wherever the legislature intended to regulate the relationship between the landlord and tenant under the agreement only, in so far as is rovided and no further, it has made specific provision, such as for instance, under section 5 it has provided that the tenant and landlord may agree among themsel ves in regard to the quantum of rent payable for a holding, subject to the maximum rent specified in section 3. In section 6 it has empowered the cultivating tenant and the landlord, notwithstanding any agreement between them, to apply to the tahsildar for the fixation of fair rent for the holding. Section 13 restricts the power of the landlord to evict the tenant notwithstanding anything contained in sections 10, 11 and 12, relating to the minimum period of lease, change in the ownership of land during the currency of the lease and continuance of tenancy on the death of a cultivating tenant. It only permits eviction subject to the conditions specified in section 13, one of which is the failure to pay rent due by the tenant within a period of one month from the date on which the rent is due according to the usage of the locality. There is, therefore, sufficient indication in the act itself which will show that the provisions of any existing law are not applicable to the conditions prescribed for eviction in section 13. Acceptance of rent even after the grace period has expired, therefore, can be of no avail to the tenant and it will not be open to him to say that the landlord is estopped because he has accepted rent. In two cases, the calcutta high court, on analogous provisions of rent control acts applicable to building and houses held that the acceptance of rent does not amount to a condonation of default.

(10) In jetha bhulchand v. F. C. Grace, a. I. R. 1923 cal. 227. Buckland, j. , dealt with the contention that under section11 (5) of the rent act if the rent has not been paid, but the landlord has subsequently accepted payment thereof, there is a waiver on the part of the landlord which disentitles him from seeking to evict the tenant. At page 227, he observed :

"it is, however, contended that if the rent is accepted subsequently and after default there is a waiver and the section does not apply. I do not agree with this. Where there is an agreement to extend the time for payment before the rent actually becomes due under the lease, there it might well be that the time within which under section 11 (5) rent has to be paid to the landlord is such extended date, but where the default has already taken place i do not think that subsequent acceptance of rent by the landlord takes the m atter out of the provisions of section 11, sub - section (5)."

(11) In kanto m. Mullick v. Jyotish ch. Mukherjee ,a. I. R. 1949 cal. 571. Gentle, j. , was of the view that clause (9) of the calcutta house rent control order was intended to afford protection to a tenant who regularly pays his rent and carries out all the obligations of his tenancy. If a tenant does not do that, he cannot avail himself of the benefit of the order. The control order itself makes no reference to any waiver, as is to be found in section 112 of the transfer of property act in respect of acceptance of rent subsequently. It was further observed that at a time when a forfeiture has been incurred by non - payment of rent in time, but apart for any absence of reference to waiver, it is clear that the question of waiver does not arise ; the tenant must at all times comply with the order and must at all times not fall into arrears with regard to his rent. If he does and forfeiture is once incurred, subsequent acceptance of rent by the landlord does not act as waiver so as to entitle the tenant to the protection of the rent control order. With these views, i am in respectful agreement and since the object and policy of the legislature in the rent control order is similar to that in the andhra tenancy act, there can be no difference in the applition of that principle. I am satisfied that the default is one which has occurred by non - payment of rent within the time prescribed by section 13. As such, the revenue authorities were right in passing orders of eviction. This writ petition is accordingly dismissed with costs. Advocate's fee rs. 1005. 00. Petition dismissed.