Telangana High Court
Nagesh vs Sri A. Damodar Reddy on 21 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.52 of 2024
JUDGMENT:
The present Second Appeal is filed questioning the judgment and decree, dated 19.09.2023, passed by I Additional District Judge, Medchal-Malkajgiri District at Kushaiguda in AS.No.231 of 2022 (Old AS.No.159 of 2017), whereunder and whereby the judgment and decree dated 29.04.2017 passed by the II Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar in O.S.No.309 of 2009 was confirmed.
2. The appellant is the defendant and the respondent is the plaintiff in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The brief facts of the case, which led to filing of the present Second Appeal, are that the plaintiff is owner of the suit schedule mulgi apart from other mulgies and a three room portion shed at the said premises. A rental agreement was entered between the plaintiff and the defendant on 16.09.2004, for a period of eleven months only, and as per the terms of said agreement, the defendant has to pay Rs.20,000/- as advance, but, he has paid Rs.16,300/- only, that too, in three instalments. The rent is being enhanced 2 LNA, J S.A.No.52 of 2024 from time to time and the present rent is Rs.5,000 per month. Since the said agreement is an unregistered one, the lease is to be treated as a lease from month to month. As the plaintiff required the suit schedule mulgi for his personal use, in the month of January, 2017, he requested the defendant to vacate the muligi, but the defendant avoided to vacate the said mulgi by giving evasive replies. The defendant did not even pay rents from May, 2008. On the other hand, the defendant filed a suit-OS.No.1363 of 2008 on the file of the Court of II Additional Junior Civil Judge, Ranga Reddy District seeking injunction restraining the plaintiff from evicting him from the suit schedule mulgi. The plaintiff, therefore, got issued a legal notice dated 05.01.2009 calling upon the defendant to vacate the suit schedule mulgi by 01.02.2009, failing which, to pay the mense profits, but, the defendant got issued a reply with false and baseless allegations.
3.1. In the first week of January, 2009, the defendant sent money order for a paltry sum, instead of paying Rs.5,000/- per month, and therefore, the plaintiff has refused to receive the same. Hence, the defendant is liable to pay the arrears of rent at Rs.5,000/- per month for the period from May, 2008 to 31.01.2009, 3 LNA, J S.A.No.52 of 2024 amounting to Rs.45,000/-, and to vacate and hand over the vacant possession of the suit schedule mulgi to the plaintiff and also to pay future mesne profits at Rs.10,000/- per month from 01.02.2009 till the date of handing over the vacant possession of the suit schedule mulgi to the plaintiff. Hence, the suit.
4. The defendant filed written statement inter alia stating that he paid Rs.20,000/- as advance to the plaintiff, but, not Rs.16,000/- as alleged by the plaintiff. It was further stated that as per the terms of lease, dated 16.09.2004, the rent has to be enhanced at 10% per annum over and above the existing rent and by the date of filing of the suit, the rent of the suit schedule mulgi was Rs.1,464/- per month only, but not Rs.5,000/- per month, as alleged by the plaintiff. It was further stated though he was willing to pay the rent regularly, the plaintiff himself has refused to receive the rent from December, 2008 and that the plaintiff has even refused to receive the money sent through money order and therefore, he is not due any amount towards arrears of rent and is also not liable to pay any amount towards future mesne profits.
5. On the basis of above rival pleadings, the trial Court framed the following issues for trial:
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LNA, J S.A.No.52 of 2024 "(1) Whether the plaintiff is entitled for eviction of the defendant from the suit schedule property and entitled vacant possession as prayed for?
(2) Whether the rent claimed by the plaintiff at Rs.5,000/- in respect of the suit schedule property is true and correct?
(3) Whether the defendant committed default in paying the rent to the plaintiff?
(4) Whether the plaintiff is entitled to recover the arrears of rent as prayed for?
(5) Whether the plaintiff is entitled to mesne profits as prayed for?"
(6) To what relief?"
6. During the trial, on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-5 were marked. On behalf of the defendant, D.Ws.1 and 2 were examined and Exs.B-1 to B-16 were marked.
7. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties and in the light of the ratio laid down by the Hon'ble Supreme Court in Nopany Investments (P) Ltd Vs. Santok Singh 1, decreed the suit vide judgment 29.4.2017, holding that the tenancy of the defendant over the suit schedule property was validly terminated by the 1 AIR 2008 SC 673 5 LNA, J S.A.No.52 of 2024 plaintiff by issuing a quit notice dated 05.01.2009 under Ex.A-1 and therefore, the plaintiff is entitled for recovery of the vacant and physical possession of the suit schedule property and also mesne profits from the defendant.
9. On appeal, the first Appellate Court, in view of rival contentions of both the parties, framed the following points for determination:-
"(1) Whether the quit notice dated 05.01.2009 i.e., Ex.A1, satisfies the requirements of Section 106 of the Transfer of Property Act?
(2) Whether the rent claimed by the plaintiff at Rs.5,000/- per month in respect of the suit schedule mulgi is true and correct?
(3) Whether the trial Court has no inherent jurisdiction to entertain and try the suit in view of Section 32 of the A.P.Buildings (Lease, Rent and Eviction) Control Act?
(4) Whether the plaintiff is entitled for eviction of the defendant from the suit schedule mulgi? (5) Whether the plaintiff is entitled to arrears of rent as claimed?
(6) Whether the plaintiff is entitled to mesne profits as prayed for?
(7) Whether the impugned judgment and decree suffers from any illegality, irregularity warranting interference by this Court?6
LNA, J S.A.No.52 of 2024 (8) To what relief?"
10. The first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available on record and observed as hereunder:-
"From the above recitals of Ex.A-1notice, it is obvious that the plaintiff determined the tenancy and required the defendant to vacate and handover the vacant possession of the suit schedule mulgi to him by 01.02.2009. Thus, in the opinion of this Court, it satisfies the above requirements of Section 106(1) of the Transfer of Property Act. Further, as held by the Hon'ble Supreme Court in Nopany Investments (Petitioner) Ltd's case (supra), filing of eviction suit under general law itself is a notice to quit on the tenant and that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the landlord to get a decree of eviction against the tenant. Thus, in any view of the matter, it can be held that Ex.A-l-notice satisfies the requirements of Section 106 of the Transfer of Property Act and the plaintiff has validly terminated the tenancy of the defendant."
11. As regards the quantum of rent, the first Appellate Court observed as hereunder:-
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LNA, J S.A.No.52 of 2024 "The claim of the defendant as regards the quantum of rent for the suit schedule mulgi is self-inconsistent. Further, the defendant did not produce any evidence to prove that the rent was either Rs.1,000/- or Rs.1,464/- ог Rs.2,000/- as on the date of filing of the suit. Another thing to be noted is that it is not that the plaintiff has pleaded for the first time in this suit that the rent for the suit schedule mulgi is Rs.5,000/- per month. He, in his written statement i.e., Ex.B14, filed in O.S.No.1363 of 2008 that was filed by the defendant for injunction also, has categorically stated that the defendant failed to pay the rent of Rs.5,000/- per month. The defendant did not elicit anything contra from the plaintiff/PW1 to disprove his case that the rent for the suit schedule mulgi was at Rs.5,000/- per month."
11.1. The first Appellate Court further observed that the plaintiff set the law in motion for eviction of the defendant by getting issued Ex.A-1-notice under Section 106 of the Transfer of Property Act, which is valid, and so the plaintiff is entitled to seek eviction of the defendant from suit schedule mulgi and also for mesne profits at Rs.10,000/- per month from 01.02.2009 till the date of handing over the vacant possession of the suit schedule mulgi to the plaintiff.8
LNA, J S.A.No.52 of 2024
12. Heard Sri K.Sreenivas, learned counsel for the appellant and Sri Malipeddi Srinivas Reddy, learned counsel for the respondent. Perused the record.
13. A perusal of the record discloses that both the trial court as well as the first Appellate Court concurrently held that the oral and documentary evidence adduced by both the parties proved that the plaintiff is entitled for recovery of vacant and physical possession of the suit schedule property from the defendant and the defendant committed default in paying the admitted rent in respect of the suit schedule property from May, 2008 onwards and accordingly, directed the defendant to pay the arrears of rent from May, 2008 to 30.01.2009 @ Rs.5,000/- per month and also mesne profits from 01.02.2009 @ Rs.10,000/- per month.
14. Learned counsel for appellant argued that the trial Court decreed the suit without proper appreciation of the evidence and the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
15. However, learned counsel for appellant 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 9 LNA, J S.A.No.52 of 2024 factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
16. 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 on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
17. Further, in Gurdev Kaur v. Kaki 2, 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.
18. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first 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 appellant are factual in 2 (2007) 1 Supreme Court Cases 546 10 LNA, J S.A.No.52 of 2024 nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
19. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
20. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:21.02.2024 dr