Telangana High Court
Mr. Dinesh Chand Gupta vs M.A.Majeed , Faheem on 1 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.153 of 2022
JUDGMENT:
Challenging the validity and legality of the judgment and decree, dated 07.01.2022, passed by XI Additional Chief Judge, City Civil Court, Hyderabad in AS.No.56 of 2018, whereunder and whereby the judgment and decree dated 22.12.2017 passed by the III Junior Civil Judge, City Civil Court, Hyderabad in O.S.No.2269 of 2015 was confirmed, the present Second Appeal is filed.
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 facts of the case, briefly stated, which led to filing of the present Second Appeal, are the suit was filed praying the Court to pass judgment and decree against the defendant for ejectment in respect of the suit schedule property and for future mesne profits @ Rs.50,000/- per month from 01-09-2015 till delivery of possession. 3.1. In the plaint, it was inter alia stated that the plaintiff is the landlord of the suit schedule property having obtained the same under oral Hiba from his mother Smt Jani Begum on 26.08.2012 and thereafter, a memorandum of gift deed dated 11.09.2012 was 2 LNA, J S.A.No.153 of 2022 executed by Smt.Jani Begum. Originally, the mother of plaintiff- Smt Jani Begum let out the schedule property to the defendant under a lease by receiving a sum of Rs.4 Lakhs towards interest free refundable deposit. The case in R.C.No.320 of 2010 on the file of Principal Rent Controller, City Small Causes Court, Hyderabad, was compromised between the parties. The rent of the schedule property is Rs.12,000/- per month. The defendant paid the rent upto May, 2015 and thereafter, committed willful default in payment of rents. The plaintiff issued a legal notice dated 07.08.2015 to the defendant by terminating the tenancy by the end of August, 2015 and requested the defendant to vacate and handover the suit schedule property on or before 01.09.2015. The defendant failed to vacate and handover the possession to the plaintiff. Hence, the plaintiff approached the Court.
4. The defendant filed his written statement by inter alia denying the averments made in the plaint. The defendant admitted about the deposit of amounts with the landlord and the Rent Controller proceedings and also the quantum of rent of the schedule property @ Rs. 12,000/- per month.
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LNA, J S.A.No.153 of 2022 4.1. The defendant further stated that as per the terms of the compromise in R.C.No.320 of 2012 on the file of Principal Rent Controller, City Small Causes Court, Hyderabad, the tenancy was for a period of three years starting from May, 2012 to April, 2015 and after expiry of said three years, the tenancy shall be extended by mutual understanding. The plaintiff received the rent for the month of May, 2012, but he avoided receiving the rents for the subsequent months of May, 2015.
4.2. It was further stated that the defendant is carrying business in the suit schedule property and he will suffer irreparable loss if the suit is allowed and prayed to dismiss the suit.
5. On considering the material on record, the trial Court framed the following issues for consideration:-
"1. Whether the plaintiff is entitled for eviction of defendant and recovery of vacant physical possession of suit schedule property for the defendant as prayed for?
2. Whether the plaintiff is entitled for future mesne profits at the rate of Rs.50,000/- per month from 01.09.2015 till delivery of possession?
3. To what relief?"4
LNA, J S.A.No.153 of 2022
6. On behalf of the plaintiff, P.W-1 was examined and Ex.A-1 to Ex.A-13 were marked. On behalf of the defendant, D.W-1 & 2 were examined and Exs.B-1 and B-2 were marked.
7. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, observed as follows:-
"D.W-1 in his cross-examination admitted that since from the date of inspection of tenancy, the plaintiff used to pass the rent receipts and he acknowledges on the counter foils of the rent receipts. Ex.A2 rent receipt book. The above admission of DW1 clearly shows that the defendant accepted that the plaintiff is the owner of the property and during the course of tenancy, he never raised any objection with regard to the entitlement of plaintiff to receive the rents of the schedule property and questioned the title of plaintiff. The long practice of payment of rents to the plaintiff by the defendant itself shows that there is a jural relationship of landlord and tenant in between the plaintiff and defendant. In the light of above admission, it can be concluded that the plaintiff is the landlord of the tenanted premises and the defendant is his tenant."
7.1. The trial Court further observed that admittedly, there is no renewal of lease deed executed by the parties after expiry of three years i.e., after the month of April, 2015. Even after receipt of 5 LNA, J S.A.No.153 of 2022 Ex.A-3 quit notice, the defendant failed to vacate the suit premises. As such, the plaintiff is entitled for eviction of the defendant and recovery of vacant physical possession of the suit schedule property.
8. On appeal, 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:-
"The defendant issued Ex.A-5 which is reply notice dated 20.08.2015 and in the said reply notice he has categorically admitted that plaintiff is the landlord of suit schedule property and that he is the tenant and also admitted that quantum of rent paid in respect of suit schedule property. No plea was taken in Ex.A-5 by disputing the plaintiff as landlord of suit schedule property."
8.1. The first Appellate Court further observed that there is no fresh lease deed executed in between the parties after expiry of three years of period i.e., after month of April, 2015 as referred in Ex.B-1. Also, there is no material evidence put forth by the defendant to substantiate his plea that the plaintiff intentionally avoided to receive the rents. Ultimately, the first Appellate Court confirmed the judgment of the trial Court.
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LNA, J S.A.No.153 of 2022
9. Heard Sri Praveen Vyapari, learned counsel for the appellant, and Sri Vedula Srinivas, learned senior counsel, who argued on behalf of Smt Vedula Chitralekha, learned counsel on record for the respondent. Perused the record.
10. A perusal of the record discloses that both the Courts below, on appreciating the oral and documentary evidence adduced by both the parties, concurrently held that the relationship of landlord and tenant between the plaintiff and the defendant is established; that there is no extension of lease in respect of the suit schedule property after April, 2015 and that even after receipt of quit notice from the plaintiff, the defendant failed to vacate and hand over possession of the suit schedule property to the plaintiff.
11. 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.
12. 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 7 LNA, J S.A.No.153 of 2022 factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
13. 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.
14. 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.
15. 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 1 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.153 of 2022 nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
16. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:01.03.2024 dr