3 vs Nathu
2021 Latest Caselaw 2805 AP

             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

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

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

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.

MVR,J S.A.No.330 of 1999

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.

MVR,J S.A.No.330 of 1999

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

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

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

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

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

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

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.

MVR,J S.A.No.330 of 1999

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

. (1994) 4 SCC 250 MVR,J S.A.No.330 of 1999

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

. (2014) 11 SCC 438 MVR,J S.A.No.330 of 1999

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

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

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.330 of 1999

DATE: 03.08.2021

RR