THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.338 of 2022
JUDGMENT:
Defendant in O.S.No.1755 of 2012 filed the present second appeal, against the judgment and decree dated 18.04.2022 in A.S.No.1 of 2019 on the file of XII Additional District Judge, Visakhapatnam, confirming the judgment and decree dated 03.12.2018 in O.S.No.1755 of 2012 on the file of VII Additional Senior Civil Judge, Visakhapatnam.
2. For the sake of convenience and brevity, the parties herein are referred to as they are arrayed in the O.S.No.1755 of 2012.
3. Plaintiff filed the suit O.S.No.1755 of 2012 on the file of VII Additional Senior Civil Judge, Visakhapatnam seeking eviction of defendant from the suit schedule property and for possession of the same. Plaintiff also sought for recovery of arrears of rent of Rs.72,000/- from September, 2011 and for damages of Rs.32,000/- at the rate of Rs.16,000/- per month from 01.05.2012 till the defendant vacates the premises.
4. The case of the plaintiff, in brief, is that the plaintiff is the absolute owner of an extent of 255 square yards with RCC building in the ground floor measuring 1333 square feet and 1333 square feet in the first floor and asbestos roof shed measuring 366 square yards covered by old D.No.47-7-29 and new D.No.47-7-29A in Plot No.123C, block No.23 in Dwaraka Nagar, Visakhapatnam. Plaintiff purchased the same under a registered sale deed dated 30.07.2007 from Budharaju 2 Satyavathi and her husband B.Venkata Bangarraju, represented by their General Power of Attorney Holder S.Satyavathi, and possession was delivered to the plaintiff. Since, then she has been in possession and enjoyment of the schedule property. Defendant approached the plaintiff and requested to let out the premises to run fancy stores in the name and style of M/s Kishore Fancy Stores and offered to pay monthly rent of Rs.6,500/- for a period of two years from August, 2007. After expiry of two years, defendant requested the plaintiff to permit him to continue business for further period of two years and rent was enhanced to Rs.7,500/- per month and the said lease was expired in August, 2011. Defendant again requested the plaintiff to continue in schedule property for two more years till 2013 and offered to pay Rs.9,000/- per month. But the plaintiff is not inclined to continue the defendant, however permitted the defendant to continue in the premises till January, 2012. Thereafter, defendant started exhibiting true colours and stopped payment of rent to her since 2011, on one pretext or other. In February, 2012, the plaintiff personally and through elders requested the defendant to vacate and hand over physical possession of schedule premises to her. However, defendant did not heed their request. Therefore, the plaintiff got issued a registered notice demanding the defendant to vacate and handover physical possession of property and to pay arrears of rent of Rs.54,000/- from September, 2011. Defendant received the notice and sent reply with false allegations. Hence, plaintiff filed the suit for eviction and for other reliefs. 3
5. Defendant filed written statement and contended interalia that one Sunkara Venkata Krishnarao is the absolute owner of the building bearing D.No.47-14-1 consisting of shops. Out of said shops, S.V.Krishnarao let out one shop to defendant in the year 1982 and since then he has been carrying on business of fancy stores in the suit schedule property. Defendant has been carrying business in the schedule premises for the last 30 years and the rent was enhanced from time to time and present rent is Rs.1,500/-. About 6 years back, S.V.Krishna Rao approached the defendant and appraised that he is shifting to Vizianagaram and directed him to pay rent to one Pratap Reddy. Since, then defendant is regularly paying rents to said Pratap Reddy without committing any default. About 50 days back, one Sridhar visited the schedule property and asked to pay the rents to him stating that he is the absolute owner of the suit schedule property. Immediately, defendant approached the said Pratap Reddy and informed about the acts of Sridhar. Pratap Reddy in turn asked him to pay the rents to said Sridhar. When defendant insisted the Sridhar to produce the documents, he failed to do so. In those circumstances, defendant filed suit O.S.No.229 of 2012 on the file of II Additional Senior Civil Judge, Visakhapatnam and also filed R.C.C.No.18 of 2012 against S.V.Krishnarao, Pratap Reddy and Sridhar. The said suit was contested by Sridhar and Pratap Reddy. In the meantime, notice dated 05.04.2012 under Section 106 of the Transfer of Property Act was issued by the plaintiff asserting her right to the schedule property, for which the defendant sent a reply notice. Defendant asserted that there 4 is no landlord and tenant relationship and in fact, he has been carrying on business, since 1996 and thus, prayed to dismiss the suit.
6. Appellant, being the defendant filed suit O.S.No.692 of 2012 to declare that there is no relationship of lessor and lessee between him and defendant (plaintiff herein) and for consequential relief of permanent injunction.
7. Both the suits were clubbed, and the evidence was recorded in O.S.No.1755 of 2012.
8. Basing on the pleadings, the trial Court framed the following issues:
(1) Whether the plaintiff is entitled for recovery of possession of the plaint schedule property as prayed for?
(2) Whether the plaintiff is entitled for recovery of arrears of rents and damages as prayed for?
(3) To what relief?
9. Plaintiff himself examined as P.W.1 and examined P.W.2. Exs.A-1 to A-4 were marked. Defendant himself examined as D.W.1 and Exs.B-1 to B-7 were marked.
10. Trial Court on consideration of both oral and documentary evidence, came to the conclusion that defendant failed to prove that there is no landlord and tenant relationship between him and plaintiff; that plaintiff proved that defendant is her tenant and eventually decreed the suit with costs. Further directed the defendant to vacate the suit schedule property and handover its 5 physical possession to the plaintiff within one month and also directed the defendant to pay arrears of rents of Rs.72,000/- to the plaintiff and liberty is given to plaintiff to file separate application claiming damages for defendant's unauthorized occupation of the suit schedule property. Suit O.S.No.692 of 2012 filed by defendant, was dismissed.
11. Aggrieved by the judgment and decree in O.S.No.1755 of 2012, defendant filed A.S.No.1 of 2019 on the file of XII Additional District Judge, Visakhapatnam. He also filed separate appeal against the dismissal of O.S.No.692 of 2012.
12. The first appellate Court being the final fact finding Court, framed the following points for consideration: (1) Whether the plaintiff is entitled for eviction of the defendant from the suit schedule property?
(2) Whether the plaintiff is entitled for recovery of arrears of rents from the defendant?
(3) Whether the plaintiff is entitled for damages @Rs.16,000/- per month from the defendant for unauthorized use and occupation of the schedule property?
(4) Whether the judgment of the learned trial Court is erroneous?
13. After considering both oral and documentary evidence, the Lower Appellate Court by judgment dated 18.04.2022 dismissed the appeal with costs. Assailing the same, the present second appeal is filed.
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14. Heard Sri Rajesh Matcha, learned counsel for the appellant/defendant.
15. Learned counsel for appellant would submit that there is no landlord and tenant relationship between the appellant and respondent. He would submit that S.V.Krishna Rao leased out the schedule premises to the appellant and he paid the rents to the said S.V.Krishna Rao. Notice issued under Section 106 of the Transfer of Property Act is not valid.
16. Basing on the above contentions the following substantial questions of law arise for consideration in this second appeal: (1) Whether the notice under Section 106 of the Transfer of Property Act is valid?
(2) Whether plaintiff proved landlord and tenant relationship between himself and defendant? (3) Whether the judgments of the Courts below are vitiated in appreciating the evidence on record?
17. Pleaded case of the plaintiff is that she purchased the property under Ex.A-1 registered sale deed dated 30.07.2007. She further pleaded that defendant approached her in August, 2007 and her shop was leased out to defendant on monthly rent of Rs.6,500/- for a period of two years and after expiry of lease, it was extended for two more years till August, 2009 by enhancing rent @ Rs.7,500/-. After expiry of lease in August, 2011, plaintiff demanded the defendant to vacate the premises, since the plaintiff intended to construct multi-storeyed building by demolishing the existing structure. Defendant agreed to 7 vacate the schedule premises by January, 2012 and also agreed to pay rent @ Rs.9,000/- per month. However, defendant failed to vacate the premises and filed suit O.S.No.692 of 2012 against the husband of plaintiff and others. Plaintiff got issued quit notice dated 05.04.2012 under Section 106 of the Transfer of Property Act demanding the defendant to vacate the premises by 20.04.2012. Plaintiff also claimed Rs.72,000/- as arrears of rent from September, 2011 and Rs.32,000/- as damages.
18. The defendant denied the relationship of landlord and tenant and contended that S.V.Krishnarao is the absolute owner of the building and the monthly rent is Rs.300/- and by the time of filing the written statement, monthly rent is Rs.1,500/- and he has been carrying on business for the last 30 years. He further contended that plaintiff's husband Sridhar demanded the defendant to pay monthly rent and hence, he filed suit O.S.No.229 of 2012 to declare that there is no landlord and tenant relationship.
19. Plaintiff examined herself as P.W.1 and got examined P.W.2, scribe of Ex.A-1 registered sale deed dated 30.07.2007. Ex.A-1 prima facie proves the ownership of plaintiff over the schedule property.
20. It is pertinent to mention here that in the cross examination of D.W.1, he deposed that about 15 years back, the said Krishna Rao sold the property, however no such document was filed. He further deposed that he does not know the said 8 Krishnarao and his mother sold the schedule property to Budharaju Bangarraju and Satyavathi and they in turn sold the same to the plaintiff. However, D.W.1 denied the suggestion regarding his approaching the plaintiff and taking the premises on lease on a rent of Rs.6,500/- per month. D.W.1 also admitted that suit filed by him in O.S.No.229 of 2012 was dismissed and R.C.C.No.18 of 2012 was also dismissed. Thus, the evidence on record is clear and cogent that P.W.1 is landlady and D.W.1 is tenant of suit schedule property. The findings recorded by the Courts below are based on evidence.
21. The other contention of tenant is notice issued under Section 106 of the Transfer of Property Act is not valid notice. The quit notice issued is marked as Ex.A-2. A perusal of notice indicates that landlord issued the said notice demanding the tenant to vacate the schedule premises and the same is also inconsonance with Section 106 of the Transfer of Property Act. Though it was contended that the quit notice is not valid, no discrepancy/infirmity was pointed out to invalidate the said notice. The findings of the fact recorded by the Courts below are based on both oral and documentary evidence. The concurrent findings recorded by the Courts below are neither perverse nor misleading of evidence and misconception of documents.
22. Whether this Court can interfere with concurrent findings of the facts recorded by Courts below under Section 100 of CPC? 9
23. The Hon'ble Apex Court in Hero Vinoth Vs. Seshammal1, held thus:
"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
It was furthermore held:
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on 1 AIR 2009 SC 1481 10 the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).
24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-
(i) ...
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."
24. In the light of the law laid down by the Hon'ble Apex Court on the scope of interference by the High Court in second appeal, this Court while exercising jurisdiction under Section 100 of CPC must confine to the substantial question of law involved in the appeal. This Court cannot re-appreciate the evidence and interfere with the concurrent findings of the Court below where 11 the Courts below have exercised the discretion judicially. Further the existence of substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substantiate its own opinion unless the findings of the Court are manifestly perverse and contrary to the evidence on record.
25. The findings of the fact recorded by the Courts below are based on oral and documentary evidence on record. Thus, this Court is of view of that no questions of law muchless substantial questions of law involved in the second appeal. Hence, the appeal is liable to be dismissed, however, without costs.
26. Accordingly, the second appeal is dismissed at admission stage. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 11th August, 2022 PVD