Andhra Pradesh High Court - Amravati

3 vs Unknown on 11 August, 2022

     THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               SECOND APPEAL No.338 of 2022

JUDGMENT:

Defendant in O.S.No.1755 of 2012 filed the present

second appeal, against the judgment and decree dated

18.04.2022 in A.S.No.1 of 2019 on the file of XII Additional

District Judge, Visakhapatnam, confirming the judgment and

decree dated 03.12.2018 in O.S.No.1755 of 2012 on the file of

VII Additional Senior Civil Judge, Visakhapatnam.

2. For the sake of convenience and brevity, the parties herein

are referred to as they are arrayed in the O.S.No.1755 of 2012.

3. Plaintiff filed the suit O.S.No.1755 of 2012 on the file of

VII Additional Senior Civil Judge, Visakhapatnam seeking

eviction of defendant from the suit schedule property and for

possession of the same. Plaintiff also sought for recovery of

arrears of rent of Rs.72,000/- from September, 2011 and for

damages of Rs.32,000/- at the rate of Rs.16,000/- per month

from 01.05.2012 till the defendant vacates the premises.

4. The case of the plaintiff, in brief, is that the plaintiff is the

absolute owner of an extent of 255 square yards with RCC

building in the ground floor measuring 1333 square feet and

1333 square feet in the first floor and asbestos roof shed

measuring 366 square yards covered by old D.No.47-7-29 and

new D.No.47-7-29A in Plot No.123C, block No.23 in Dwaraka

Nagar, Visakhapatnam. Plaintiff purchased the same under a

registered sale deed dated 30.07.2007 from Budharaju

Satyavathi and her husband B.Venkata Bangarraju, represented

by their General Power of Attorney Holder S.Satyavathi, and

possession was delivered to the plaintiff. Since, then she has

been in possession and enjoyment of the schedule property.

Defendant approached the plaintiff and requested to let out the

premises to run fancy stores in the name and style of M/s

Kishore Fancy Stores and offered to pay monthly rent of

Rs.6,500/- for a period of two years from August, 2007. After

expiry of two years, defendant requested the plaintiff to permit

him to continue business for further period of two years and

rent was enhanced to Rs.7,500/- per month and the said lease

was expired in August, 2011. Defendant again requested the

plaintiff to continue in schedule property for two more years till

2013 and offered to pay Rs.9,000/- per month. But the plaintiff

is not inclined to continue the defendant, however permitted the

defendant to continue in the premises till January, 2012.

Thereafter, defendant started exhibiting true colours and

stopped payment of rent to her since 2011, on one pretext or

other. In February, 2012, the plaintiff personally and through

elders requested the defendant to vacate and hand over physical

possession of schedule premises to her. However, defendant did

not heed their request. Therefore, the plaintiff got issued a

registered notice demanding the defendant to vacate and

handover physical possession of property and to pay arrears of

rent of Rs.54,000/- from September, 2011. Defendant received

the notice and sent reply with false allegations. Hence, plaintiff

filed the suit for eviction and for other reliefs.

5. Defendant filed written statement and contended interalia

that one Sunkara Venkata Krishnarao is the absolute owner of

the building bearing D.No.47-14-1 consisting of shops. Out of

said shops, S.V.Krishnarao let out one shop to defendant in the

year 1982 and since then he has been carrying on business of

fancy stores in the suit schedule property. Defendant has been

carrying business in the schedule premises for the last 30 years

and the rent was enhanced from time to time and present rent

is Rs.1,500/-. About 6 years back, S.V.Krishna Rao approached

the defendant and appraised that he is shifting to Vizianagaram

and directed him to pay rent to one Pratap Reddy. Since, then

defendant is regularly paying rents to said Pratap Reddy without

committing any default. About 50 days back, one Sridhar visited

the schedule property and asked to pay the rents to him stating

that he is the absolute owner of the suit schedule property.

Immediately, defendant approached the said Pratap Reddy and

informed about the acts of Sridhar. Pratap Reddy in turn asked

him to pay the rents to said Sridhar. When defendant insisted

the Sridhar to produce the documents, he failed to do so. In

those circumstances, defendant filed suit O.S.No.229 of 2012 on

the file of II Additional Senior Civil Judge, Visakhapatnam and

also filed R.C.C.No.18 of 2012 against S.V.Krishnarao, Pratap

Reddy and Sridhar. The said suit was contested by Sridhar and

Pratap Reddy. In the meantime, notice dated 05.04.2012 under

Section 106 of the Transfer of Property Act was issued by the

plaintiff asserting her right to the schedule property, for which

the defendant sent a reply notice. Defendant asserted that there

is no landlord and tenant relationship and in fact, he has been

carrying on business, since 1996 and thus, prayed to dismiss

the suit.

6. Appellant, being the defendant filed suit O.S.No.692 of

2012 to declare that there is no relationship of lessor and lessee

between him and defendant (plaintiff herein) and for

consequential relief of permanent injunction.

7. Both the suits were clubbed, and the evidence was

recorded in O.S.No.1755 of 2012.

8. Basing on the pleadings, the trial Court framed the

following issues:

(1) Whether the plaintiff is entitled for recovery of possession of the plaint schedule property as prayed for?

(2) Whether the plaintiff is entitled for recovery of arrears of rents and damages as prayed for?

(3) To what relief?

9. Plaintiff himself examined as P.W.1 and examined P.W.2.

Exs.A-1 to A-4 were marked. Defendant himself examined as

D.W.1 and Exs.B-1 to B-7 were marked.

10. Trial Court on consideration of both oral and documentary

evidence, came to the conclusion that defendant failed to prove

that there is no landlord and tenant relationship between him

and plaintiff; that plaintiff proved that defendant is her tenant

and eventually decreed the suit with costs. Further directed the

defendant to vacate the suit schedule property and handover its

physical possession to the plaintiff within one month and also

directed the defendant to pay arrears of rents of Rs.72,000/- to

the plaintiff and liberty is given to plaintiff to file separate

application claiming damages for defendant's unauthorized

occupation of the suit schedule property. Suit O.S.No.692 of

2012 filed by defendant, was dismissed.

11. Aggrieved by the judgment and decree in O.S.No.1755 of

2012, defendant filed A.S.No.1 of 2019 on the file of XII

Additional District Judge, Visakhapatnam. He also filed

separate appeal against the dismissal of O.S.No.692 of 2012.

12. The first appellate Court being the final fact finding Court,

framed the following points for consideration:

(1) Whether the plaintiff is entitled for eviction of the defendant from the suit schedule property?

(2) Whether the plaintiff is entitled for recovery of arrears of rents from the defendant?

(3) Whether the plaintiff is entitled for damages @Rs.16,000/- per month from the defendant for unauthorized use and occupation of the schedule property?

(4) Whether the judgment of the learned trial Court is erroneous?

13. After considering both oral and documentary evidence, the

Lower Appellate Court by judgment dated 18.04.2022 dismissed

the appeal with costs. Assailing the same, the present second

appeal is filed.

14. Heard Sri Rajesh Matcha, learned counsel for the

appellant/defendant.

15. Learned counsel for appellant would submit that there is

no landlord and tenant relationship between the appellant and

respondent. He would submit that S.V.Krishna Rao leased out

the schedule premises to the appellant and he paid the rents to

the said S.V.Krishna Rao. Notice issued under Section 106 of

the Transfer of Property Act is not valid.

16. Basing on the above contentions the following substantial

questions of law arise for consideration in this second appeal:

(1) Whether the notice under Section 106 of the Transfer of Property Act is valid?

(2) Whether plaintiff proved landlord and tenant relationship between himself and defendant?

(3) Whether the judgments of the Courts below are vitiated in appreciating the evidence on record?

17. Pleaded case of the plaintiff is that she purchased the

property under Ex.A-1 registered sale deed dated 30.07.2007.

She further pleaded that defendant approached her in August,

2007 and her shop was leased out to defendant on monthly rent

of Rs.6,500/- for a period of two years and after expiry of lease,

it was extended for two more years till August, 2009 by

enhancing rent @ Rs.7,500/-. After expiry of lease in August,

2011, plaintiff demanded the defendant to vacate the premises,

since the plaintiff intended to construct multi-storeyed building

by demolishing the existing structure. Defendant agreed to

vacate the schedule premises by January, 2012 and also agreed

to pay rent @ Rs.9,000/- per month. However, defendant failed

to vacate the premises and filed suit O.S.No.692 of 2012 against

the husband of plaintiff and others. Plaintiff got issued quit

notice dated 05.04.2012 under Section 106 of the Transfer of

Property Act demanding the defendant to vacate the premises by

20.04.2012. Plaintiff also claimed Rs.72,000/- as arrears of

rent from September, 2011 and Rs.32,000/- as damages.

18. The defendant denied the relationship of landlord and

tenant and contended that S.V.Krishnarao is the absolute owner

of the building and the monthly rent is Rs.300/- and by the

time of filing the written statement, monthly rent is Rs.1,500/-

and he has been carrying on business for the last 30 years. He

further contended that plaintiff's husband Sridhar demanded

the defendant to pay monthly rent and hence, he filed suit

O.S.No.229 of 2012 to declare that there is no landlord and

tenant relationship.

19. Plaintiff examined herself as P.W.1 and got examined

P.W.2, scribe of Ex.A-1 registered sale deed dated 30.07.2007.

Ex.A-1 prima facie proves the ownership of plaintiff over the

schedule property.

20. It is pertinent to mention here that in the cross

examination of D.W.1, he deposed that about 15 years back, the

said Krishna Rao sold the property, however no such document

was filed. He further deposed that he does not know the said

Krishnarao and his mother sold the schedule property to

Budharaju Bangarraju and Satyavathi and they in turn sold the

same to the plaintiff. However, D.W.1 denied the suggestion

regarding his approaching the plaintiff and taking the premises

on lease on a rent of Rs.6,500/- per month. D.W.1 also admitted

that suit filed by him in O.S.No.229 of 2012 was dismissed and

R.C.C.No.18 of 2012 was also dismissed. Thus, the evidence on

record is clear and cogent that P.W.1 is landlady and D.W.1 is

tenant of suit schedule property. The findings recorded by the

Courts below are based on evidence.

21. The other contention of tenant is notice issued under

Section 106 of the Transfer of Property Act is not valid notice.

The quit notice issued is marked as Ex.A-2. A perusal of notice

indicates that landlord issued the said notice demanding the

tenant to vacate the schedule premises and the same is also

inconsonance with Section 106 of the Transfer of Property Act.

Though it was contended that the quit notice is not valid, no

discrepancy/infirmity was pointed out to invalidate the said

notice. The findings of the fact recorded by the Courts below are

based on both oral and documentary evidence. The concurrent

findings recorded by the Courts below are neither perverse nor

misleading of evidence and misconception of documents.

22. Whether this Court can interfere with concurrent findings

of the facts recorded by Courts below under Section 100 of CPC?

23. The Hon'ble Apex Court in Hero Vinoth Vs. Seshammal1,

held thus:

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on

AIR 2009 SC 1481

the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

24. In the light of the law laid down by the Hon'ble Apex Court

on the scope of interference by the High Court in second appeal,

this Court while exercising jurisdiction under Section 100 of

CPC must confine to the substantial question of law involved in

the appeal. This Court cannot re-appreciate the evidence and

interfere with the concurrent findings of the Court below where

the Courts below have exercised the discretion judicially.

Further the existence of substantial question of law is the sine

qua non for the exercise of jurisdiction. This Court cannot

substantiate its own opinion unless the findings of the Court are

manifestly perverse and contrary to the evidence on record.

25. The findings of the fact recorded by the Courts below are