Bugga Ramaiah, vs T.Sriramulu,
2021 Latest Caselaw 4871 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                  SECOND APPEAL No. 131 of 2003

JUDGMENT :

The defendants, who were the tenants of the plaint schedule

premises, are the appellants.

2. The respondent as the plaintiff instituted the suit against the

appellants for their eviction, arrears of rent and future damages for use

and occupation.

3. The respondent is the owner of the plaint schedule premises. It

is an open space bearing Door No.66/50 of Fort, Kurnool with a room

therein.

4. The appellants were carrying on wholesale business in sale of

fruits from this premises. They obtained this premises from the

respondent with effect from 01.09.1989 on a monthly rent of Rs.1800/-

agreeing to enhance by 35% once in three years. It appears that the

appellants did not stick on to this rate of enhancement and who chose to

pay a monthly rent of Rs.2200/-, with 25% of enhancement on the

original rent for next three years upto 1995. Thereafter, the rent was

enhanced to Rs.2800/- with effect from 01.09.1995.

5. In respect of first two terms of this tenancy, rent notes were

entered into in between these parties stipulating certain terms admittedly.

6. Stating that the appellants failed to pay rent from May, 1996 in

spite of his repeated demands and since they paid rent only upto April,

1996, the respondent got issued a notice dated 09.12.1996 terminating MVR,J S.A.No.131 of 2003

the tenancy of the appellants, demanding arrears of rent as well as

delivery of vacant possession of plaint schedule premises. It is the

contention of the respondent that inspite of service of this notice, the

appellants neither vacated nor paid the arrears of rent nor issued any

reply. In those circumstances, the respondent claimed that he was

constrained to lay the suit seeking such reliefs stated above.

7. The appellants resisted the claim of the respondents mainly

contending that the rent notes for earlier two terms were all prepared at

the instance of the respondent, who retained originals while furnishing

them only photocopies. They further contended that further rent note was

entered into in between themselves on one hand and the respondent on

the other for an extended period of three years from 01.09.1995 to

31.08.1998 on enhanced rent of Rs.2800/- per month. They also

contended that at the inception of tenancy they deposited Rs.8000/- with

the respondent and during second tenure, they deposited Rs.8800/-. They

also contended that while extending the tenure from 01.09.1995 to

31.08.1998, the respondent collected Rs.11,200/- towards deposit, which

he did not account for.

8. It is also the contention of the appellants that whenever they

were paying rents, they were being entered into a small notebook and

there was an oral understanding among them that they would pay the

rent at their convenience, which was to be completely paid without any

arrears within such tenure of three years.

MVR,J S.A.No.131 of 2003

9. The appellants also contended that the respondent demanded

enhancement of rent to Rs.4,000/- from Rs.2800/- all of a sudden with

effect from May, 1996, which they resisted, offering to consider his

demand after expiry of the present term of tenancy, namely after

31.08.1998. The appellants also contended that in view of this fact, the

respondent with an evil intention did not receive the rents they tendered

and refused money orders for Rs.2800/- per month, to remit rent for May

to July, 1996. Thus they contended that the respondent played fraud and

waived consenting for the breach of some of the material terms in the

rent notes. Therefore, according to them the respondent is not entitled for

any relief much less eviction against them. They also referred to alleged

failure of the respondent in accounting for the advance deposited by them

and that they had effected repairs and erected certain structures spending

Rs.35,000/-.

10. The appellants also questioned the quit notice issued by the

respondent to them contending that it is invalid and inoperative since he

did not furnish full particulars of the premises leased out and which did

not mention payment of property tax by them for this premises. They

tried to raise a counter-claim for specific performance basing on the

original rent note alleged to have had been executed by the respondent in

their favour for the period from 01.09.1995 to 31.08.1998. Thus they

stated that a false claim is presented against them by the respondent,

who harassed them by presenting a complaint to the police alleging that

they were allowing lorries with loads of fruits, to park infront of one of

their shop rooms, which is adjoining premises to the plaint schedule MVR,J S.A.No.131 of 2003

property and referring to collapse of an old wall to the west of this

premises which is denying protection to their shop, since the respondent

did not choose to repair this wall.

11. The appellants also contended that there is forfeiture of the

terms of tenancy and therefore, they are entitled for protection under

Section 114 of the Transfer of Property Act.

12. Basing on the pleadings, the trial Court settled the following

issues and additional issue:

"1. Whether the plaintiff‟s notice to the defendants dated 09.12.1996 is valid?

2. Whether the plaintiff is entitled to arrears of rent as prayed for?

3. Whether the plaintiff is entitled to future damages as prayed for?

4. To what relief?

Additional Issue:

Whether the defendants are entitled to the relief against the plaintiff for forfeiture of their tenancy rights under Section 114 of the Transfer of Property Act?"

13. The respondent examined himself as P.W.1 and relied on Ex.A1

to Ex.A6 in support of his contention. The 2nd and 3rd appellants examined

themselves as D.W.1 and D.W.2 respectively, while D.W.3 is a third party

who is said to have supplied and erected certain thatti structures in the

plaint schedule premises in support of their contention, while relying on

Ex.B1 to Ex.B10.

14. On the material and evidence, the learned trial Judge directed

eviction of the appellants from the plaint schedule premises while

dismissing the claim of the respondent for recovery of arrears of rent as MVR,J S.A.No.131 of 2003

well as future damages more on account of the deposit of rents by the

appellants during pendency of the suit as per the directions of the trial

Court.

15. In the appeal, this decree of eviction was confirmed against

the appellants while cross-objections filed by the respondent for costs,

which was denied by the trial Court, were allowed.

16. In these circumstances, the appellants presented this second

appeal.

17. This second appeal was admitted on the following substantial

questions of law set out by the appellants in the memorandum of appeal.

"1. Whether the learned II Additional District Judge has not gravely erred in traversing beyond the plea taken by the respondent in the plaint, that the appellants enhanced the rent to Rs.2,800/- per month with effect from 01.09.1995 and paid rents only upto April, 1996 having agreed to continue the tenancy, which would clearly show that there was no termination of tenancy and that the ground on which the suit was based as only on the alleged irregularity in paying rents by the appellants?

2. Whether the evidence given by the respondent which is contrary to the plea taken by him in the notice Ex.A1 and in the plaint can be accepted at all as it is against the well known principle that „no amount of evidence can be looked into in the absence of a specific plea‟ which is incorporated in catena of decisions?

3. Whether the learned Additional District Judge is justified in throwing the burden on the defendants to prove the existence of tenancy between the appellants and respondent as on the contrary the burden was heavy on the respondent to prove the termination of the tenancy which of course as not even pleaded by him in the plaint?

4. Whether the deficiency in the evidence adduced by the appellants would enure to the benefit of the respondent and give rise to passing of a decree in his favour?

MVR,J S.A.No.131 of 2003

18. During pendency of this second appeal, the respondent died

and his Legal Representatives being the respondents 2 to 5 were brought

on record.

19. Heard Sri P.Veera Reddy, learned senior counsel for Sri Ambati

Sreekanth Reddy, learned counsel for the appellants and Sri P.A.Seshu,

learned counsel for the respondents.

20. The essence of substantial questions of law raised by the

appellants is with reference to the alleged termination of their tenancy by

the deceased 1st respondent upon issuance of Ex.A1 quit notice dated

09.12.1996.

21. Ex.A1 quit notice is sought to be challenged by the appellants

mainly on the ground that the tenancy is contractual in nature since they

as well as the deceased 1st respondent entered into rent note specifying

certain terms and conditions for the period from 01.09.1995 to

31.08.1998. Therefore, according to the contention of the appellants,

institution of the suit before expiry of the lease period by 31.08.1998, is

bad. The appellants further contended that Ex.A1 is also invalid for the

reason that the property described therein is uncertain and that it is

lacking in details as to payment of property tax etc.

22. It is the contention of Sri P.Veera Reddy, learned senior

counsel, that the learned appellate Judge did not consider the evidence

and material on record in right perspective and erred in recording findings

without basis. The learned senior counsel further contended that on

account of deposit of rent immediately upon institution of the suit, the MVR,J S.A.No.131 of 2003

appellants also raised a plea of forfeiture in terms of Section 114 of the

Transfer of Property Act which question was not at all addressed by the

learned appellate Judge and therefore, the judgment of the appellate

Court is bad in law. Assailing the findings recorded by both the Courts

below in directing eviction of the appellants, the learned Senior counsel

further contended that the evidence on record was not properly

appreciated and despite concurrent findings so recorded, in view of

substantial questions of law made out by the appellants, interference of

this Court is required in this second appeal.

23. Sri P.A.Seshu, learned counsel for the respondents, contended

that both the Courts below upon appreciation of evidence and material

rightly concluded that this is a fit case for directing eviction of the

appellants from the plaint schedule premises and that it is not a case

where application of Section 114 of the Transfer of Property Act is seen

nor there is any question of forfeiture of the claim of the respondents in

as much as the suit is based on determination of tenancy by issuance of

Ex.A1 notice under Sections 106 and 111 of the Transfer of Property Act.

Thus contending, the learned counsel for the respondents requested not

to interfere with the decrees and judgments of both the Courts below

since there are consistent as well as concurrent findings on appreciation of

facts and since there are no substantial questions of law as such, made

out.

24. The evidence of P.W.1, D.W.1 and D.W.2 is establishing that

upon entering this tenancy with effect from 01.09.1989 initially for a

period of three years, the appellants continued in possession. Thereafter, MVR,J S.A.No.131 of 2003

on account of the renewal of this tenancy, they continued in possession of

the plaint schedule premises up to 31.08.1995. At the trial, these parties

admitted that there were rent notes stipulating certain terms and

conditions.

25. One of the grounds set out by the deceased 1st respondent in

Ex.A1 quit notice is that the appellants were defaulters in paying the rent.

Evidence from him also reflected that the appellants were not tendering

rent in lump sum and were given to paying the rent in-part at irregular

intervals.

26. The evidence on record is that these parties maintained

separate notebooks where these sums paid towards rent, were being

entered into and recorded. Ex.B1 is the notebook maintained for such

purpose where admittedly whatever payments made towards rent were

recorded either under the signature of the deceased 1st respondent or his

family members. One of the earlier entries in Ex.B1 reflected that these

parties had entered into a rent note for the first period commencing from

01.09.1989 on a monthly rent of Rs.1800/-. The contents of Ex.B1 did not

refer to similar rent notes for the second extended term or later term

commencing from 01.09.1995. These facts were taken into consideration

by both the Courts below in appreciation of evidence and the situation so

presented.

27. The specific contention of the appellants is that there was a

rent note for the third extended period from 01.09.1995, which was to

last upto 31.08.1998. Except the oral assertion of the appellants and their MVR,J S.A.No.131 of 2003

pleading in the written statement, there is no material to support this

contention. Both the Courts below considered the entries in Ex.B1 in this

context which did not support such contention since there is no mention

that a rent note was entered into among these parties for this third

extended period. There is a bare mention of enhanced rent at Rs.2800/-

with effect from 01.09.1995 in Ex.B1 as one of the last entries and

nothing more. Both the Courts below are right in drawing such inference

and conclusion, basing on the material.

28. The manner of making payments towards the rent, as seen

from Ex.B1 did indicate that the appellants were hopelessly careless or

uncaring in adhering to their obligation to pay the rent within stipulated

time.

29. The conduct of the appellants is quite reprehensible. They

sought to present a case as if they were permitted by the deceased 1st

respondent to pay the rent at their leisure and convenience. On their own

showing they had sufficient money to pay the rent and yet went on

making part-payments as if the landlord is at their mercy. When the

tenants are of despicable nature and character, they cannot remain in that

premises to the detriment of the interest of the landlord. Their conduct is

further reflected in view of the statement of D.W.1 elicited in cross-

examination that they were earlier tenants of Sri Mazahar Hussain, a

senior Advocate of Kurnool Bar, who had to evict them through process of

Court. Therefore, these tenants, namely the appellants cannot be allowed

to squat on the property of the respondents.

MVR,J S.A.No.131 of 2003

30. D.W.1 admitted in cross-examination of the contents of these

two rent notes. He admitted that the rent was agreed to be paid on or

before 5th of every succeeding month. It was never the situation, which is

explicit from Ex.B1 and the material on record. He further stated that the

property tax for this premises along with the betterment charges were

agreed to be paid by them. There is default admittedly in this process.

Therefore, the ground on which the appellants intended to question Ex.A1

notice, on the premise that it did not refer payment of property tax by

them, is not available.

31. There is no dispute as to identity of the plaint schedule

property and therefore, the appellants cannot contend that Ex.A1 is bad

for uncertainty in this regard.

32. There is no documentary proof relating to the alleged rent note

or contractual tenancy for the third extended period from 01.09.1995.

D.W.2 admitted this fact in cross-examination for the respondents. When

such is the situation, which was considered by both the Courts below in

right perspective, it cannot become a reason for the appellants now to

question Ex.A1 quit notice in this second appeal. The deceased 1 st

respondent as P.W.1 stated that the appellants intended to shift their

business to market yard on account of demands by the authorities

concerned and therefore they did not evince interest to continue the

tenancy after expiry of the second period. However, this version of P.W.1

is not supported by the pleadings in the plaint or Ex.A1 quit notice. But

the fact remained that the tenancy of the plaint schedule premises

continued orally in favour of the appellants and that the deceased 1 st MVR,J S.A.No.131 of 2003

respondent received rents admittedly upto April, 1996 at the rate of

Rs.2800/- per month in piece meal. Thereafter, he claimed that the

appellants defaulted and whereas the appellants contended that it was the

deceased 1st respondent who did not accept the rents in spite of tendering

and sending by money order.

33. The material on record is clear that the basis for eviction of the

appellants from the plaint schedule premises is not on account of default

in payment of rents or breach of contractual tenancy committed by the

appellants nor such is the ground sought to be made out either in the

pleadings or at the trial on behalf of the respondents. Termination of

tenancy simplicitor by issuance of Ex.A1 notice under Section 106 of the

Transfer of Property Act is the basis, which in turn is one of the modes of

termination of lease, under Section 111(h) of the said Act. The appellants

failed to make out that this way of termination of lease or tenancy is

invalid or improper. They did not choose to issue any reply to it at the

earliest point of time.

34. Therefore, the reasons assigned by both the Courts below in

directing eviction of the appellants from the plaint schedule premises

basing on Ex.A1 quit notice being proper and valid is completely

justified.

35. Though the learned appellate Judge did not consider the effect

of Section 114 of the Transfer of Property Act as to forfeiture upon

condoning the default of the appellants to pay rents properly, such

question was addressed by the learned trial Judge in proper perspective.

MVR,J S.A.No.131 of 2003

As rightly observed by the trial Court the tenancy in question is not

determined by forfeiture for non payment of rent nor the claim of

ejectment of the appellants from the plaint schedule premises sought by

the deceased 1st respondent is on such premise. Therefore, as rightly

contended for the respondents, there is no question of application of

Section 114 of the Transfer of Property Act. This question was also not

raised as a substantial question of law in the grounds of appeal on behalf

of the appellants. Nonetheless, since contentions are advanced on such

premise on behalf of both the parties, this question is now considered.

36. Therefore, finding that the reasons assigned by both the

Courts below, in drawing such inferences and conclusions are completely

based on the material on record as well as the evidence, based on fact

situation, in terms of Section 100 CPC, this Court sitting in second appeal

cannot reappraise. There are no such questions much less substantial

questions of law which require determination in this second appeal as

sought to be canvassed on behalf of the appellants.

37. Other questions relating to deposit of rent or alleged

expenditure incurred by the appellants for making certain improvements,

erecting structures or getting the premises repaired are purely questions

of facts.

38. In the above circumstances, this second appeal has to be

dismissed confirming the decrees and judgments of both the Courts

below.

MVR,J S.A.No.131 of 2003

39. In the result, this second appeal is dismissed with costs of the

respondents. The appellants are directed to vacate the plaint schedule

premises on or before 31.01.2022 and deliver peaceful possession of the

plaint schedule premises to the respondents. Otherwise, the respondents

shall institute execution proceedings against the appellants and get them

evicted through process of Court therefrom. The present arrangement of

depositing Rs.3,000/- per month as ordered in C.M.P.No.2612 of 2003 by

an order dated 03.01.2003 and confirmed by the order in C.M.P.No.7872

of 2003 dated 04.04.2003 shall continue till possession of the plaint

schedule premises is delivered to the respondents by the appellants. The

respondents are entitled to withdraw these amounts so deposited, without

furnishing any security, if they did not do so, till now.

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim Orders, if any, stand vacated.

_________________________ JUSTICE M.VENKATA RAMANA

Dt: 29.11.2021 RR MVR,J S.A.No.131 of 2003

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.131 of 2003

Dt: 29.11.2021

RR