Telangana High Court
Md. Salahuddin , Mukhtar vs P. Bapurao Died And 5 Others on 27 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.140 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 02.02.2023 passed in A.S.No.33 of 2016 on the file of the I Additional Chief Judge, City Civil Court at Secunderabad, confirming the judgment and decree dated 02.05.2016 passed by the XI Junior Civil Judge, City Civil Courts, Secunderabad, in O.S.No.191 of 2008. Thus, the present Second Appeal is filed against the concurrent findings of trial Court as well as first Appellate Court.
2. For the sake of convenience, the parties are referred to as they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal are that the respondent No.1/plaintiff No.1 claims to be the owner of the building situated in Plot No.1, beside Hanuman Temple, Lothukunta main road, Secunderabad. The said building consists of five shops, out of which, two shops i.e., shop Nos.4 and 5 (hereinafter referred to as 'the suit schedule mulgies') were let out to the defendant No.1. Initially, the monthly rent of the suit schedule mulgies was Rs.1,800/- and 2 LNA, J S.A.No.140 of 2023 thereafter, it was enhanced to Rs.2,600/- per shop, on mutual consent.
4. It was contended that the defendant No.1 was trying to sublet the suit mulgies contrary to the terms and conditions of the oral tenancy. Therefore, the plaintiffs filed O.S.No.1095 of 2006 seeking a direction to the defendant No.1 not to sublet the suit mulgies to any third party and the said suit was dismissed for default.
5. It is further contended that during the pendency of the said suit, the defendant No.1 inducted another subtenant i.e., defendant No.2 herein in shop No.5 without the knowledge and permission of the plaintiffs. Therefore, the plaintiffs got issued a quit notice dated 27.10.2007 to the defendants under Section 106 of the Transfer of Property Act, 1882, terminating the tenancy of the defendant No.1 w.e.f. 31.11.2007 by giving 15 days time and calling upon them to vacate and handover the vacant possession on or before 01.12.2007. Though the defendant No.1 received the said notice, the defendant No.2 avoided to receive the same. The defendant No.1 sent a reply dated 07.11.2007 alleging that a blank ledger paper was sent in the said cover. Therefore, the plaintiffs sent a copy of the quit notice dated 27.10.2007 to the counsel for the defendant No.1, 3 LNA, J S.A.No.140 of 2023 but, no reply was sent by the defendant No.1. Hence, the plaintiffs filed the present suit.
6. The defendant No.1 filed written statements denying the plaint averments and inter alia stating that he alone is doing business in Shop No.4 as well as Shop No.5 and that he never violated the terms and conditions of the oral tenancy.
7. Since the process was not paid against the defendant No.2, the suit against him was dismissed on 12.12.2008.
8. On behalf of the plaintiffs, P.W.1 was examined and Exs.A1 to A.16 were marked. On behalf of the defendants, D.W.1 was examined and Exs.B1 to B23 were marked.
9. The trial Court, after considering the entire material available on record, vide judgment and decree dated 02.05.2016, decreed the suit in part with costs, and the defendant No.1 was directed to vacate and handover the vacant possession of the suit schedule shops to the plaintiffs within two months. Aggrieved by the same, the defendant No.1 filed A.S.No.33 of 2016. The lower appellate Court on re-appreciation of the entire evidence and perusal of the material available on record vide judgment and decree dated 02.02.2023 dismissed 4 LNA, J S.A.No.140 of 2023 the appeal confirming the judgment and decree passed by the trial Court. Hence, the present second appeal.
10. Heard Sri M.A.K. Mukeed, learned counsel for the appellant and Sri M.V.S. Sarma, the learned counsel for the respondents. Perused the record.
11. A perusal of the record discloses that both the Courts below concurrently held that the plaintiffs are entitled for eviction of the defendant No.1 from the suit schedule shop Nos.4 and 5 and are entitled for delivery of vacant possession of the same.
12. Learned counsel for appellants vehemently argued that the trial Court decreed the suit without proper appreciation of the evidence and the lower appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
13. However, learned counsel for appellants failed to raise any substantial question of law to be decided by this Court in this second appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C. 5
LNA, J S.A.No.140 of 2023
14. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
15. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.
16. Having considered the entire material available on record and the findings recorded by the trial Court as well as the Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellants are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
1 (2007) 1 Supreme Court Cases 546 6 LNA, J S.A.No.140 of 2023
17. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
18. At this stage, learned counsel for appellant sought two months time to vacate the subject premises. Accordingly, time is granted as sought for subject to appellant filing undertaking to that effect within a period of ten days from today, failing which, time granted for vacating the premises stands vacated.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY, J Date: 27.12.2023 Va/kkm