HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No.330 of 1999
JUDGMENT:
This second appeal is directed against the decree and judgment in A.S.No.69 of 1990 on the file of the Court of the learned I Additional District Judge, Krishna at Machilipatnam dated 16.03.1998. It was in turn preferred against the decree and judgment in O.S.No.274 of 1986 on the file of the Court of the learned I Additional District Munsif, Machilipatnam dated 21.03.1990.
2. The original plaintiff, whose L.Rs. are now brought on record as the appellants, instituted the suit for ejectment, arrears of rent and for mesne profits, against the original defendant, whose L.Rs. are respondents 2 to 5 in the second appeal. When the second appeal was presented, both these parties were alive.
3. The property in dispute on the date of the suit was a residential site at Batchupet, Ward No.22, Machilipatnam, admeasuring 2717 Sq.feet equivalent to 252.419 Sq.mts., within the boundaries mentioned in the plaint schedule. It will be referred to hereinafter as 'the suit site'.
4. The case of the original plaintiff was that the respondent was the tenant of the suit site, who agreed to pay rent at Rs.180/- per annum, executed an agreement of lease for a period of one year from 01.03.1983 to 28.02.1994, agreeing to vacate and surrender the same to the original plaintiff on termination of the lease period, without any notice. This lease agreement was entered into on 02.05.1983, according to the original plaintiff and since the original defendant failed to vacate the premises, the original plaintiff got issued registered notice on 20.02.1984, demanding to vacate and handover possession, to which a reply was issued on behalf of MVR,J S.A.No.330 of 1999 2 the original defendant denying her claim and asserting his possession to the suit site. Therefore, the original plaintiff claimed that she was constrained to lay the suit not only for ejectment but also for arrears of rent for the year 1985-86 as well as mesne profits at the rate of Rs.300/- per annum till delivery of possession.
5. The original defendant filed a written statement resisting the claim of the original plaintiff denying that she being the owner of the suit site and contending that it is a government poramboke and waste land. The original defendant further stated in the written statement that he occupied this site and constructed a thatched house, living therein as absolute owner for more than 25 years. Thus, he denied the relationship between him and the original plaintiff as 'the tenant and the landlord' of the suit site. Stating that a reply notice was issued when legal notice was received from the original plaintiff, asserting his right to this property and denying his liability to pay rent or its arrears or mesne profits, he requested to dismiss the suit.
6. Basing on the above pleadings, the learned trial Judge settled the following issues for trial:
"1. Whether the plaintiff is owner of the plaint schedule site?
2. Whether the defendant is a lessee and executed a lease deed in favour of the plaintiff?
3. Whether the plaintiff is in possession of the plaint schedule site at any time?
4. Whether the defendant is liable to pay any arrears of rent or any amount claimed by plaintiff?
5. Whether the defendant has been in possession of the suit schedule property as contended by him?
6. To what relief?"
7. The parties went to trial, where the elder brother of the original plaintiff was examined as P.W.1 and P.W.2, who is one of the attestors to MVR,J S.A.No.330 of 1999 3 the lease agreement, while relying on Ex.A1 to Ex.A10. The original defendant examined himself as D.W.1 and another witness D.W.2 to support his claim. No documents were exhibited on behalf of the original defendant at the trial.
8. On the material and the evidence, the learned trial Judge accepted the claim of the original plaintiff, decreed the suit directing the original defendant to deliver vacant possession of the suit site within one month from the date of the decree, pay Rs.180/- towards arrears of rent for the year 1985 to 1986 and to ascertain mesne profits till the date of delivery of possession by separate application.
9. The original defendant presented A.S.No.69 of 1990 against this decree and judgment of the trial Court. Upon reappraisal of the material and evidence, the 1st appellate Court reversed the decree and judgment of the trial Court assigning reasons to the effect that there is no proof of the original plaintiff being the landlady of the suit site with the original defendant being the tenant, that Ex.A1 lease agreement has not been proved nor other documents relied on for the plaintiff established her claim. Observing that the burden is on the original plaintiff in a suit for ejectment who cannot rely on the weakness in the case set up by the original defendant, holding that the original plaintiff failed to establish the identity of the property, that she was allotted in the family partition dated 14.06.1972 as well as referred in Ex.A4-the certified copy of the final decree in O.S.No.194 of 1948, and Ex.A5-registered partition deed, the suit was dismissed, accepting the contention of the original plaintiff.
10. In this second appeal, Sri B. Manoj Kumar, learned counsel, for Ms. B.Manjulatha Vedavally, learned counsel for the appellants and Sri MVR,J S.A.No.330 of 1999 4 O.Manohar Reddy, learned counsel for the respondents, addressed arguments.
11. This second appeal was admitted on 06.08.1999 on the following substantial questions of law:
"1. Whether the plaintiff can recover the possession from the defendant against whom she has established the anterior possession?
2. Whether it is required for the plaintiff to prove the absolute title over the sit schedule property when the defence is setting up of the title and possession on a different root of title?"
12. Since both these substantial questions are interrelated consideration of which depends on appreciation of evidence let in at the trial by both the parties, both of them are now being considered and determined together.
SUBSTANTIAL QUESTIONS OF LAW 1 & 2: DETERMINATION:
13. It is well established that in a suit for ejectment, the burden is on the plaintiff to establish the claim against the defendant. The plaintiff cannot rely on any weakness or laches in the case set up by the plaintiff. Having regard to nature of the dispute in between these parties, the relationship between the original plaintiff and the original defendant being 'the landlady and the tenant' has to be established, which in turn takes in the question of right, title and interest of the original plaintiff to hold the suit site, qua the original defendant. While the 1st appellate Court considered the question of 'landlord and tenant' relationship in between these parties, learned trial Judge considered issue No.1, relating to ownership of the suit site of the original plaintiff and issue No.2 relating to status of the original defendant as lessee under Ex.A1 lease agreement.
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14. The case of the appellants, who are now representing the original plaintiff, is based on title held by the original plaintiff to this property on account of the allotment of the site to her in the partition in the family evidenced by an unregistered deed of partition dated 14.06.1972.
15. Sri Madireddy Satyanarayana Murthy is the father of the deceased original plaintiff. She was the third issue to her parents. P.W.1 was one of her elder brothers, who was incharge of this litigation and also attested Ex.A1 dated 02.05.1983-lease agreement.
16. Sri Madireddy Satyanarayana Murthy was allotted certain properties under a final decree in O.S.No.194 of 1948, a certified copy of which is Ex.A4, on the file of the Court of the learned District Munsif, Machilipatnam. It was a suit between Sri Madiressy Satyanarayana Murthy and Sri M.Butchi Abbayirao Naidu as well as Sri Seshagiri Rao Naidu. As seen from Ex.A5-registered partition deed dated 15.04.1961, among Sri Madireddy Satyanarayana Murthy, his wife Smt. Bhaskaramma, his son Sri M.Venkateswara Rao (P.W.1) and Smt. Kamala Kumari, wife of Sri M. Govinda Rao (who was the deceased second son of Sri Madireddy Satyanarayana Murthy), among several properties that were its subject matter, a vacant site allotted to Sri Madireddy Satyanarayana Murthy in O.S.No.194 of 1948 to an extent of 2445 Sq.ft. was considered for partition. The very same property viz., the site is claimed in this dispute being the one allotted to the original plaintiff when there was a partition in the family evidenced by unregistered partition deed as stated above, dated 14.06.1972. This partition document could not be exhibited being unregistered, as per the observations of both the Courts below. Thus, the original plaintiff set out her claim to the suit site as the absolute owner.
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17. The suit site as per the plaint schedule is of 2717 Sq.ft. The observations of both the Courts basing on the evidence is that except northern boundary, all three other boundaries set out in the plaint schedule are identical, in a comparison between the plaint schedule and description of the site in Ex.A5 partition deed. While the learned trial Judge accepted the basis so laid by the original plaintiff to the suit site, the learned appellate Judge differed on the ground that the measurement on the north of 69 ft. is not reflected in Ex.A5 partition deed and when it is considered along with Ex.A4 the northern boundary stood at 51 ft. Thus, on account of this variation, the learned appellate Judge observed that the area of this site increased to 2717 Sq.ft. Thus, the learned appellate judge held that the sites described in Ex.A4 and Ex.A5 are not identical nor being the suit site. The contentions advanced before the appellate Judge that boundaries prevail over extent, were not accepted.
18. As seen from the written statement, the original defendant did not contend specifically that the suit site is not the site in his occupation, raising a dispute relating to the identity of the property. His defence merely stood in claiming the site in his occupation, that it is Government Poramboke and waste land, where he constructed a house. Thus, this specific defence was set up while questioning the claim of the original plaintiff.
19. In such circumstances, both the Courts below went on with the unnecessary exercise in this respect to ascertain identity of the suit property vis-à-vis Ex.A4 and Ex.A5.
20. On behalf of the original plaintiff at the trial to substantiate her claim to the suit site, Ex.A6 to Ex.A10-property tax receipts issued in her MVR,J S.A.No.330 of 1999 7 favour by Machilipatnam municipality were relied on. The learned trial Judge accepted them holding that they relate to the suit site by which the original plaintiff had paid property tax to this site. However, the learned appellate Judge on re-appraisal, disagreed with the finding of the learned trial Judge in this regard holding that no proof was laid that this property tax receipts pertain to the suit site, since the original plaintiff did not adduce evidence to the effect that the suit site was in ward No.18, which correlated to ward No.22 now shown in the plaint schedule, upon examining the concerned municipal authorities.
21. Ex.A6 and Ex.A7 are the tax receipts relating to Assessment No.8892. They bear the Door Nos. 22/149 and 22/145. Ex.A8 is another tax receipt issued with reference to assessment No.46227 and Door No.18-22-149/1.
22. The original plaintiff did not adduce evidence at the trial explaining the slight discrepancy in the door numbers referred to in Ex.A7 and Ex.A8 by examining the municipal authorities. However, the specific contention of the original plaintiff was that this site is in ward No.22, as is stated in the plaint and this ward No.22 can well be seen reflected in Ex.A7 and Ex.A8 while referring to the door number.
23. It is pertinent to note that D.W.2, examined on behalf of the original defendant and who was an individual involved in municipal politics, clearly stated that the site in occupation of the original defendant is in ward No.22. Therefore, the evidence adduced by the original defendant himself has indicated location of this property in Ward No.22 of Machilipatnam supporting the claim of the original plaintiff. Therefore, the MVR,J S.A.No.330 of 1999 8 discrepancy magnified in this regard by the learned appellate Judge is clarified by the evidence adduced by the original defendant himself.
24. Ex.A9 and Ex.A10 relate to Door No.18/155 covering assessment No.8848. They certainly stand differently from Ex.A6 to Ex.A8. Therefore, they need not be considered.
25. On behalf of the original defendant, when P.W.1 Sri Venkateswara Rao was cross-examined at the trial, it was elicited that the original plaintiff did not have any other property at Machilipatnam. The original defendant as D.W.1 deposed that the original plaintiff and P.W.1 Sri Venkateswara Rao have their houses opposite to the suit site, separated by a road in between. When these circumstances are considered along with the documentary proof discussed above, it leaves no manner of doubt that the suit site belonged to the original plaintiff.
26. At the appellate stage, on behalf of the original defendant Ex.B1 was exhibited and marking and consideration of which was consented to on behalf of the original plaintiff. Ex.B1 consisted of three field maps relating to then Ward No.5, Circuit No.1 of Machilipatnam. They disclosed properties of Sri Madireddy Veera Raghavaiah Naidu. There is no dispute nor a question in controversy that Sri Madireddy Veera Raghavaiah Naidu holding properties at Machilipatnam.
27. The original defendant was not certain, to whom this suit site belonged to, as seen from his written statement and testimony as D.W.1, though he claimed that it is a part of a Government Poramboke, which he has been in possession and enjoyment for more than 25 years. As D.W.1 in his examination-in-chief he stated that he did not know who is the owner of the suit site. He further deposed that this site had Babul trees MVR,J S.A.No.330 of 1999 9 and upon enquiring neighbouring residents about ownership of this site, he occupied and constructed a thatched house therein. He further deposed that this thatched house was destroyed in cyclone in the year 1977 and thereafter, he raised another hut in that site. In cross- examination for the original plaintiff, he stated that he did not know the ownership of the suit site and he has been living in it treating that it is a Poramboke. He also stated that he did not have any documentary evidence to show that this site belonged to the Government. This is the basis on which he instructed his learned counsel in the trial Court to state in the written statement that this site belonged to the Government, which fact he admitted in cross-examination. Further statement in cross- examination of this witness is that P.W.1 Sri Venkateswara Rao has been asking him to vacate this site since three years prior to filing the suit.
28. Though nature of the defence of the original defendant in the suit or his failure to set up a parallel and possible claim to this site at the trial cannot be the basis to evaluate the claim of the appellants, there should have been supporting documentary evidence to assert the claim of the original defendant that this site is a Government Poramboke. The assertion of the original plaintiff of her right, title and interest, was known to him on account of the demand by P.W.1 Sri Venkateswararao to vacate three years prior to the institution of the suit. Thereafter, there was exchange of notices in between these parties. Exs.A2 and A3 are the legal notice and postal acknowledgement, to which a reply notice was issued.
29. Thus, the material so available has established that the deceased defendant was aware of the right, title and interest claimed to the suit site by the original plaintiff well before laying the suit. In such circumstances, the possible reaction in natural course of conduct expected MVR,J S.A.No.330 of 1999 10 from a person in occupation of the property, particularly in urban or semi- urban areas is to enquire and obtain record relating to their occupation from the local authorities. It is manifest from the testimony of D.W.1-the original defendant himself that he did not make such an attempt.
30. When these deficiencies are cumulatively considered, it is manifest that the whole defence set up denying the right, title and interest of the original plaintiff to this property is false and in an attempt to squat on this property without any manner of legal right. The learned appellate Judge, did not consider the effect of oral evidence vis-à-vis the documentary proof on record. Minute details were unnecessarily considered at length, which did not go to the core of the matter, even though there was no plea particularly, with regard to the identity to the property and in considering the Ex.A6 to Ex.A8. The reasons so assigned and findings recorded thereon are clearly perverse and do not stand to reason. The findings in the context of assertion of right, title and interest by the original plaintiff were rightly recorded by the learned trial Judge. There was no occasion for the learned appellate Judge to interfere with those findings. This is the inference to draw upon re-appraisal of the material and evidence on record.
31. Sri O.Manohar Reddy, learned counsel for the respondents, strenuously contended that in the second appeal in terms of Section 100 CPC, this Court should be slow in considering the fact situation, unless it is opined that the reasons and findings recorded by the learned appellate Judge suffer from perversity. The proposition of law in this context canvassed by Sri O.Manohar Reddy, learned counsel, is well settled. At the same time, it is not a complete bar to the extent of preventing this Court in terms of Section 100 CPC to consider the fact situation, when the MVR,J S.A.No.330 of 1999 11 appreciation of the material and the evidence as well as the approach of the appellate Court in relation thereto, remained in the province of perversity or highly improbable. Similar is the situation seen now in this context, requiring appraisal of the material and evidence on record.
32. A squatter setting up a loose defence, in the presence of substantial material produced by his adversary, cannot stand to gain. The claim of the original plaintiff of acquiring the suit site in the family partition dated 14.06.1972, was rejected by the learned appellate Judge on the premise that she did not enter the box and that there is no evidence to establish this partition. P.W.1 Sri Venkateswara Rao is none other than her brother. He was a party to Ex.A5 partition deed and came forward to depose supporting this version of the original plaintiff. When he is none other than the natural brother of the original plaintiff, that supported this plea of partition dated 14.06.1972, recording such observations by the learned appellate Judge are improper. The fact that the original plaintiff did not enter the witness box, in the circumstances, did not have any consequence.
33. In relation to proof of Ex.A1-lease agreement, the learned trial Judge considered the testimony of P.W.1 and P.W.2, who attested it. Ex.A1 bears the thumb impression attributed to the deceased defendant as its executant. The learned trial Judge held that both these witnesses consistently deposed with reference to this lease agreement and accepted their version. The learned appellate Judge discarded the testimony of P.W.1 Sri Venkateswara Rao being a close relation of the original plaintiff.
34. The learned appellate Judge also rejected this claim of the original plaintiff basing on the statements of P.W.1 Sri Venkateswara Rao MVR,J S.A.No.330 of 1999 12 that the deceased defendant was in occupation of this site since the year 1972. In fact, it is also in the testimony of the original defendant as D.W.1.
35. Rejecting Ex.A1 on the premise that it came into existence on 02.05.1983 and by then the original defendant was already in occupation of this property, is not on sound lines. The learned appellate Judge observed that the evidence of P.W.1 Sri Venkateswara Rao is quite contra to the contents of Ex.A1 since there is no recital therein of the lease or otherwise or the occupation of the original defendant prior to it.
36. Denial of execution of Ex.A1 on the part of the original defendant was never pleaded in the written statement. Such theory was brought out only at the trial suggesting to P.W.1 Sri Venkateswara Rao and P.W.2. Therefore, any amount of evidence let in on behalf of the original defendant in this context, cannot stand. The nature of the defence at the trial or the evidence let in by the party should be based on the pleadings. When it is not so, such defence sought to be introduced at the trial for the first time, stands to rejection.
37. This elementary requirement was not considered by both the Courts below and the learned appellate Judge recorded findings holding that Ex.A1 is not proved. Question of subjecting Ex.A1 lease agreement to an examination by a finger print expert, in these circumstances, did not arise, though the learned appellate Judge wanted this exercise. Even otherwise, to substantiate his defence, it should have been for the original defendant, if permissible, to apply for such examination. It was not for the original plaintiff to undertake such an effort. Thus, it is another perverse finding recorded by the learned appellate Judge.
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38. Therefore, case of the original plaintiff that the original defendant was the tenant in occupation of the suit site in terms of Ex.A1 should be accepted. It leads to the consideration that there was 'landlady and tenant' relationship between the original plaintiff and the original defendant respectively and occupation of suit site by the original defendant, in the circumstances, now followed by his legal representatives, who are the respondents in this second appeal, stands to the same nature and character. They did not have an independent right, title and interest and this property belonged to the original plaintiff and now the appellants, who are representing her in this second appeal.
39. When this relationship of 'landlady and tenant' is accepted, as rightly contended by Sri B.Manoj Kumar, learned counsel for the appellants, the original defendant or the respondents are estopped in denying title of the original plaintiff or the appellants herein in terms of Section 116 of the Indian Evidence Act. To support such contention, Sri B. Manoj Kumar, learned counsel, relied on Anar Devi (Smt.) vs. Nathu Ram1, where the doctrine of tenant's estoppel is discussed in paras 11 and 12. It is as under:
11. "Doctrine of tenant's estoppel" which governs the relationship of landlord and tenant is founded on a contract of tenancy entered into by them, is well settled. Jessel, M.R., who adverted to that doctrine in Stringer's Estate, Shaw v. Jones-Ford [LR 6 Ch D 1 : 37 LT 233 : 25 WR 815] explains it thus:
"Where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord's title, as, for instance, if he takes for twenty-one years and he finds that the landlord has only five years' title, he cannot after five years set up against the landlord the jus tertii, though, of course, the real owner can always recover against him. That is a perfectly intelligible doctrine.
He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of 1 . (1994) 4 SCC 250 MVR,J S.A.No.330 of 1999 14 the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a title. That is a well- established doctrine. That is estoppel by contract."
12. Indeed, the said doctrine of tenant's estoppel, finds statutory recognition in Section 116 of the Indian Evidence Act, 1872, for short 'the Evidence Act', in that, it states that "no tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property".
40. Another decision relied on by Sri B.Manoj Kumar, learned counsel for the appellants, in this respect is Keshar Bai vs. Chhunulal2. In para 14 of this ruling it is stated thus:
"14. .....Even denial of a landlord's title in the written statement can provide a ground for eviction of a tenant. It is also settled position in law that it is not necessary that the denial of title by the landlord should be anterior to the institution of eviction proceedings. This is so stated by this Court in Majati Subbarao v. P.V.K. Krishna Rao [(1989) 4 SCC 732]."
41. Applying this principal of estoppel, the defence set up by the original defendant and followed by the respondents is precluded, in denying the right, title and interest of the original plaintiff to the property.
42. Sri O.Manohar Reddy, learned counsel for the respondents, contended that Section 116 of the Indian Evidence Act has no application in the given facts and circumstances, particularly when relief of declaration of right, title and interest is not sought by the plaintiff. Having regard to the effect of Section 110 of the Indian Evidence Act, it is contended by the learned counsel that unless contrary is proved, the person in possession of the property should be treated being the owner. It is also contended that the burden of proving that the person in possession of the property is not the owner is on the plaintiff or the 2 . (2014) 11 SCC 438 MVR,J S.A.No.330 of 1999 15 appellants. Thus, the effect of Section 110 of the Indian Evidence Act in relation to burden of proof as to ownership is sought to be invoked by Sri O.Manohar Reddy, learned counsel for the respondents.
43. Reasons are stated supra confirming the claim of the original plaintiff and now the appellants to the suit site being the original owners with lawful interest and title. Therefore, application of Section 110 of the Indian Evidence Act in relation to the original defendant and the respondents, did not arise.
44. Upshot of the discussion above is that the original plaintiff as the landlady of the suit site has right to seek ejectment of the original defendant from the suit site. As seen from the testimony of the original defendant as D.W.1, houses have been built up in the suit site. They are in the nature of accretions to the suit site. When the nature of possession of the original defendant was that of the tenant under the umbrella of the title of the original plaintiff, any accretions or subsequent improvements made to this property, did not clothe the original defendant or the respondents herein with any right to remain in this property. Long pendency of this litigation for over two decades cannot be a factor for the respondents to assume their alleged right to this property. These accretions are wrongful and without any manner of right. Therefore, they are liable to be removed therefrom. If the ejectment is sought to be executed, these illegal accretions have to be removed and for this purpose, it is unnecessary for the party to seek specific relief in the nature of mandatory injunction.
45. Therefore, it is required to interfere with the decree and judgment of the appellate Court on the substantial questions of law MVR,J S.A.No.330 of 1999 16 raised by the appellants under Section 100 CPC. Consequently, the decree and judgment of the appellate Court should be set aside restoring the decree and judgment of the trial Court.
46. In the result, this Second appeal is allowed setting aside the decree and judgment of the court of the learned I Additional District Judge, Krishna at Machalipatnam dated 16.03.1998 in A.S.No.69 of 1990. The decree and judgment of the Court of the learned I Additional District Munsif, Machalipatnam dated 21.03.1990 in O.S.No.274 of 1986 are restored. The respondents are granted three (03) months time to vacate the plaint schedule property and hand over its peaceful possession to the appellants. Otherwise, the appellants are at liberty to take recourse to process of law upon executing the decree for ejectment. The appellants are at liberty to initiate appropriate proceedings in the trial Court for realization of mesne profits. There shall be no order as to costs in this second appeal.
As a sequel, pending miscellaneous petitions, if any, stand closed. Interim orders, if any, stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt: 03.08.2021 RR MVR,J S.A.No.330 of 1999 17 HON'BLE SRI JUSTICE M.VENKATA RAMANA SECOND APPEAL No.330 of 1999 DATE: 03.08.2021 RR