Andhra Pradesh High Court - Amravati

Sri Mallikarjuna Industries vs Vishwanatham Pedda Kondaiah on 22 February, 2022

     IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                                 ****

CIVIL MISCELLANEOUS APPEAL Nos.210 & 213 OF 2021

CMA No.210 of 2021:

Sri Mallikarjuna Industries, Rep. by its Ambati Rajesh Kumar Reddy, S/o. A. Shankara Reddy, Aged about 41 Years, Occu: Business, R/o. H.No.2-80A, Kondupalli Village, Uyyalawada Mandal, Kurnool District.

... Appellant/Petitioner/Plaintiff Vs.

Vishwanatham Pedda Kondaiah, S/o. Chidambaram, Aged around 70 Years, R/o.H.No.9-13-37, Jeelaga Ramaiah Street, Near Old Bus Stand, Allagadda, Town & Mandal, Kurnool District, Andhra Pradesh & 3 others.

... Respondents/Respondents/Defendants

CMA No.213 of 2021:

Erigela Srinivasa Reddy, S/o. Lakshmi Reddy, Aged about 49 Years, Occu: Cultivation and Business, R/o. Door No.2-35, Near Kottala, S. Lingamdinne Village, Allagadda Mandal, Kurnool District & 7 others.

... Appellants/Respondents/Defendants Vs.

Vishwanatham Pedda Kondaiah, S/o. Sidhambaramaiah, Aged around 69 Years, R/o.H.No.9-13-37, Jilaga Ramaiah Street, Allagadda Town, Kurnool District.

... Respondent/Petitioner/Plaintiff

JUDGMENT PRONOUNCED ON : 22-02-2022 2 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN

1 Whether Reporters of Local ---

newspapers may be allowed to see the Judgments?

2 Whether the copies of judgment may Yes be marked to Law Reports/Journals

3 Whether Their Ladyship/Lordship wish Yes to see the fair copy of the Judgment?

_________________________ JUSTICE C. PRAVEEN KUMAR

________________________ JUSTICE B. KRISHNA MOHAN 3 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

* THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN

+ CIVIL MISCELLANEOUS APPEAL Nos.210 & 213 OF 2021

% 22-02-2022

# CMA No.210 of 2021:

... Appellant/Petitioner/Plaintiff Vs.

... Respondents/Respondents/Defendants

CMA No.213 of 2021:

... Appellants/Respondents/Defendants Vs.

Vishwanatham Pedda Kondaiah, S/o. Sidhambaramaiah, Aged around 69 Years, R/o.H.No.9-13-37, Jilaga Ramaiah Street, Allagadda Town, Kurnool District.

... Respondent/Petitioner/Plaintiff 4 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

! Counsel for the Appellants : Sri N. Ashwani Kumar

! Counsel for Respondents : Sri P. Nagendra Reddy

< Gist:

> Head Note:

? Cases referred:

2016 (9) SCC 268

2000 (6) SCC 394 5 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN

CIVIL MISCELLANEOUS APPEAL Nos.210 & 213 OF 2021

COMMON JUDGMENT : (Per Hon'ble Sri Justice B.Krishna Mohan)

CMA No.210 of 2021:

This Civil Miscellaneous Appeal is preferred against the Order

in I.A.No.308 of 2021 in O.S.No.6 of 2021 on the file of

V Additional District Judge, Allagadda dated 26.07.2021 dismissing

the application for grant of temporary injunction in favour of the

appellant/petitioner/plaintiff.

2. Heard the learned counsel for the appellant and the learned

counsel for the respondents.

3. The appellant herein is the petitioner in the I.A., and the

plaintiff in the suit before the Court below. The respondents

herein are the respondents in the I.A., and the defendants in the

suit before the Court below.

4. The appellant initiated an action in O.S.No.6 of 2021 on the

file of V Additional District Judge, Kurnool at Allagadda against the

respondents seeking permanent injunction and other reliefs with

reference to the suit schedule property of Ac.0-70 cents situated

in Door No.9/17/100, (Old No.66) in Sy.No.365/1 of Allagadda

town containing godown, RCC building with upstairs and ginning 6 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

machinery with specific boundaries as mentioned in the plaint

schedule.

5. It is the case of the appellant that as a lessee of the

1st respondent the suit schedule property was taken on an oral

lease in the month of August, 2015 initially for a period of three

years at the rent of Rs.5,000/- per month. An advance amount of

Rs.10,000/- was paid to the 1st respondent by executing a lease

agreement on a Rs. 100/- non-judicial stamp paper for the lease

period commencing from 19.09.2015 to 19-09-2018 signed by both

the appellant and the 1st respondent. The appellant was inducted

into possession of the suit schedule property pursuant to the above

said oral lease itself for running the ginning mill. As per the above

said agreement, electrical charges are being paid by the appellant

only. The appellant has further improved the said property with

the construction of verandah and installation of grading machines

with the consent of the 1st respondent. The Commercial Tax

Department, Nandyal also gave certificate of Registration to the

appellant on 13.10.2015 with effect from 01.10.2015 and the same

is in force. The appellant also obtained VAT Registration

certificate and GST Registration certificate dated 25.09.2017.

After expiry of the above said lease period, the appellant sought

for an extension of the said lease by another period of five years

and the same was accepted orally by the 1st respondent with an

agreed rent of Rs.10,000/- per month. Accordingly the rent has 7 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

been being paid without any default. The appellant also filed GST

returns under Form GSTR 3B upto date till March, 2021. Thus, the

appellant has been running the decodicator machines in the suit

schedule property for ginning of groundnut, groundnut seeds and

cotton by spending huge sums of money for further constructions,

machinery and the office furniture. Due to the Pandemic of

Covid-19 the appellant could not run the said ginning mill in the

suit schedule property since March 2020 onwards and opened it

recently from January 2021 onwards. As the respondents tried to

dispossess the appellant on 21.04.2021 it was constrained to

institute the above said suit. Pending the same, it has also filed

the above said I.A. for grant of temporary injunction against the

respondents for protecting it's possession and running of the

business/mill in the above said petition schedule property.

6. The respondents filed the written statement and as well as

the counter for the above said I.A. opposing the said relief on the

ground that the above said lease agreement was a forged one and

not admissible in evidence as it is an unregistered document. In

the course of enquiry of the above said I.A. before the trial Court

Exs.A1 to A8 were marked for the appellant and Exs.B1 to B9 were

marked for the respondents. Upon hearing the matter on merits,

the Court below dismissed the above said I.A. on the grounds that

the above said lease deed dated 19.09.2015 marked as Ex.A1 is an

unregistered one cannot be received in evidence in view of Section 8 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

35 of the Indian Stamp Act r/w Section 17 (1)(d) of Registration

Act, 1908 and Registration (Andhra Pradesh Amendment) Act,

1999, the said Ex.A1 is in the name of one Mr. Ambati Rajesh

Kumar Reddy the proprietor of the appellant but not in favour of

the appellant, the boundaries of the subject land was not

mentioned in the said lease deed and the Exs.A2 to A6 are only

based upon Ex.A1 and as such the possession of the appellant was

not found to be established.

7. The learned counsel for the appellant submitted that the

Court below grossly erred in appreciating the possession of the

appellant over the petition schedule property by way of

disbelieving the Ex.A1 as it is an unregistered document and

declared that there is no prima facie case, balance of convenience

and irreparable loss in favour of the appellant. The Court below

ought to have seen that though the Ex.A1 - lease deed is an

unregistered document it would not ipso facto disclaim the

establishment of possession of the appellant over the petition

schedule property and even independently also establishes the

possession of the appellant showing running of the said mill in the

said property.

8. The learned counsel for the respondents per contra

contended that the appellant never inducted into possession of the

petition schedule property, the Ex.A1 sought to be relied upon by

the appellant is an unregistered document which cannot be looked 9 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

into for any purpose and the other Exs.A2 to A6 cannot be

considered as they were issued consequentially relying upon Ex.A1

only and as such the Court below is justified in rejecting the above

said application.

9. Having regard to the above said facts and circumstances, it is

to be seen that the suit is for injunction simpliciter with respect to

the above said suit schedule property instituted by the appellant

and the above said I.A. was also filed by it for grant of temporary

injunction to protect it's possession for running of the ginning mill

over the said petition schedule property. Hence the appellant has

to prove it's prima facie case, balance of convenience and

irreparable loss if not granted temporary injunction by establishing

continuous physical possession as on the date of institution of the

suit itself. For which the appellant initially pleaded an oral lease

followed by the unregistered lease deed (Ex.A1) and on expiry of

the same continued with the possession on the basis of further oral

lease in order to establish it's possession and running of the

ginning mill over the petition schedule property. The appellant

fairly relied upon the Exs.A1 to A6 primarily to prove the case for

grant of temporary injunction. Though, the Ex.A1 is disputed by

the respondents with regard to it's admissibility in evidence as it is

an unregistered document, can it be ignored at this juncture for

grant of temporary injunction is a question that would fall for

consideration before the Court. It can't be lost sight of the fact 10 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

that one can be inducted into a lawful possession of the property

on an oral lease and may be allowed to continue in the similar

circumstances of this case with an unregistered instrument of

lease for a particular period and thereafter with an oral lease

subject to proof. As the objections raised by the respondents with

regard to the Ex.A1 - lease deed can be gone into in the main suit

itself and as the Exs.A1 to A6 together prima facie establishes the

continuous physical possession of the appellant over the said

property, the Court below ought not have dismissed the above said

I.A. ignoring the parameters of the interlocutory application.

In M/s Park Street Properties Pvt. Ltd. V. Dipak Kumar Singh

& Another 1 - The Hon'ble Apex Court in para 19 observed as

follows:

"It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties."

Similarly in Anthony v. KC Ittoop & Sons & Others 2 - The

Hon'ble SC in para 12, 13 & 16 observed as under:

"12. ...A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to

2016 (9) SCC 268

2000 (6) SCC 394 11 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

be rendered periodically or on specified occasions is the basic fabric for a valid lease.

The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus....

13. When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.

16. Taking a different view would be contrary to the reality when parties clearly 12 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted."

(emphasis supplied) Thus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act.

10. The Ex.A2 - Certificate of Registration issued by the

Government of Andhra Pradesh, Commercial Tax Department,

dated 13.10.2015 in favour of the appellant, the Ex.A3 -

Registration Certificate Form GST REG-06, dated 25.09.2017 issued

by the Government of India in favour of the appellant, the Ex.A4 -

Form GSTR-3B in the name of Proprietor of the appellant for the

year 2020-2021, the Ex.A5 - Original Market Value Certificate,

dated 22.04.2021 issued by the Sub-Registrar, Allagadda and the

Ex.A6 - Receipts issued by the Southern Power Distribution 13 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

Company of A.P. Limited are also independently prima facie

establishing the possession of the appellant in running the Ginning

Mill of the petition schedule property. Whereas the Ex.B1 -

Certified Copy of Mortgage Deed, dated 02.04.2004 in favour of

one Mr. Erigela Sreenivasa Reddy, the Ex.B2 the Copy of Written

Statement in O.S.No.55/2016 on the file of Senior Civil Judge's

Court, Allagadda, the Ex.B3 - Deposition of PW1 in O.S.No.55 of

2016 of the said Court, the Ex.B4 - Copy of the Judgment in the

said suit, dated 26.02.2021, the Ex.B5 - Decree in the said suit

dated 26.02.2021, the Ex.B6 - Copy of the Plaint in the connected

suit in O.S.No.7 of 2021 on the file of V Additional District Judge's

Court, Allagadda, the Ex.B7 - Copy of Registered Sale Deed, dated

12.03.2021 in favour of the 1st respondent herein, the Ex.B8 - the

Copy of Registered Sale deed, dated 22.04.1993 issued by Sub-

Registrar, Allagadda and the Ex.B9 - Copy of Registered Sale Deed,

dated 02.03.1994 issued by the Sub-Registrar, Allagadda do not

falsify or rebut the Exs.A1 to A6 in any manner to disprove the

possession of the appellant. The exhibit B-series would only

indicate the other litigation pursued by the other parties against

the respondent No.1 herein with regard to the part of petition

schedule property in this case by seeking a different relief in the

said other suit. But the stand of the Respondent no.1 is one and

the same in the two suits pending before the court below, wherein

the above said interlocutories were decided against which the 14 CPK, J & BKM, J CMA Nos.210 & 213 of 2021

present appeals arise. Further the exhibits A1 to A6 can't be fitted

against the exhibits of B-series as there is no dispute with regard

to the landlord status of the respondent no.1 with respect to the

petition schedule property. Hence the Exs.A1 to A6 shall stand on

their own strength to prove the case of the appellant herein and

they stood for the test as discussed above for grant of an

interlocutory relief. Following the above said decisions, though the

Ex.A1 is an unregistered document; we are not precluded from

determining the factum of lease from the other evidence on record

as well as the conduct of the parties by appreciating what had

happened between the parties in respect of the property became a

reality.

11. For the foregoing reasons, this Court is of the prima facie

view that the appellant is in possession of the petition schedule

property as a lessee by running the ginning mill over the said

property as on the date of the institution of the suit.

12. In the result, the order under challenge dated 26.07.2021 is

set aside. However both parties are directed to maintain status

quo as on today with regard to the petition schedule property. The

Court below shall dispose of the suit as expeditiously as possible

strictly in accordance with law.

13. Accordingly, the Civil Miscellaneous Appeal is disposed of.

There shall be no order as to costs.

                                15                        CPK, J & BKM, J
                                            CMA Nos.210 & 213 of 2021




CMA No.213 of 2021:

14. Since the petition schedule property is one and the same and

the 1st respondent in the CMA No.210 of 2021 is the sole

respondent in the CMA No.213 of 2021 and the proprietor of the

appellant in CMA No.210 of 2021 is the 8th appellant in CMA No.213

of 2021 no separate orders are necessary in the connected Civil

Miscellaneous Appeal No.213 of 2021.

Accordingly, this Civil Miscellaneous Appeal is disposed of by

setting aside the order passed in I.A.No.311 of 2021 in O.S.No.7 of

2021 on the file of the V Additional District Judge, Allagadda dated

26.07.2021 with a direction to dispose of the suit as expeditiously

as possible strictly in accordance with law. There shall be no order

as to costs.