Andhra Pradesh High Court - Amravati

Kanchipati Viswanadha Naidu, vs Smt. Sampathirao Ammaji, on 28 March, 2022

Bench: Subba Reddy Satti

       THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                 SECOND APPEAL No.374 of 2021

JUDGMENT:

The appellant is the defendant in O.S.No.928 of 2014. The

respondent herein, being plaintiff filed suit O.S.No.928 of 2014

seeking ejectment of the defendant and to deliver vacant physical

possession of the schedule property. The appellant herein filed suit

O.S.No.425 of 2013 seeking injunction. Both the suits were

clubbed and tried together. Evidence was recorded in O.S.No. 928

of 2014.

2. By common judgment dated 18.10.2019, the trial Court

dismissed suit O.S.No.425 of 2013 and decreed suit O.S.No.928 of

2014 with costs. The appellant/defendant was granted three

months time to vacate the premises. Trial Court also held that

plaintiff is also entitled to recover Rs.85,400/- from the defendant

towards arrears of rent. It was further held that the plaintiff has to

file a separate application seeking damages.

3. Aggrieved by the judgment and decree in O.S.No.928 of 2014

the tenant/defendant filed A.S.No.439 of 2019. Against the

judgment and decree in O.S.No.425 of 2013, A.S.No.438 of 2019

was filed. The first appellate Court vide judgment dated

14.06.2021 dismissed the appeals confirming the judgment of the

trial Court. Against the judgment and decree in A.S.No.439 of

2019, the present second appeal was filed. No appeal was filed

against the judgment and decree in A.S.No.438 of 2019.

4. This Court admitted second appeal on 04.08.2021 and

framed the following substantial questions of law:

1) Whether the Courts below are justified in ordering eviction without considering whether the appellant is a tenant holding over and if found so, whether the notice issued under Section 106 of the Transfer of Property Act is valid?

2) Whether the lease which is oral is to be treated as a lease from month to month or the same is a lease for a fixed period and whether the quit notice is to be given on the basis of the nature of the lease or otherwise?

5. This Court granted interim stay of all further proceedings in

E.P.No.64 of 2020 in O.S.No.928 of 2014 subject to the petitioner

depositing Rs.85,400/- towards arrears of rent and Rs.19,992/-

towards suit costs.

6. The respondents entered appearance and filed counter vide

I.A.No.2 of 2021 to vacate the interim stay granted by this Court.

When I.A.No.2 of 2021 was listed before the Court, learned counsel

on either side requested the Court to hear the second appeal itself.

Accordingly, the second appeal itself is taken up for hearing.

7. The averments in O.S.No.928 of 2014, germane to decide the

appeal, are as follows:

The plaintiffs are the absolute owners of the plaint schedule

property; that the 1st plaintiff purchased the property under a

registered sale deed dated 02.05.2007 and let out the schedule

property to the defendant for a period of five years from November,

2007 on a monthly rent of Rs.11,000/-. According to the plaintiffs,

lease is oral and no advance amount was received. As per the

terms and conditions agreed, rent shall be payable on or before 5th

of every succeeding month, however, the defendant always delayed

in payment of rents; that the rent payable from February, 2012 to

September, 2012 was Rs.16,500/- per month; that the lease was

expired by October, 2012 by afflux of time and there was neither

express nor implied extension of lease; that the defendant failed to

vacate the suit schedule property by the end of October, 2012 and

also fell in arrears of rent of Rs.4,800/- per month for four months

between February, 2012 to January, 2013 and postponing the

payment of arrears of rent; that the rent has to be increased at

least 10% every year; that since oral lease was expired by afflux of

time, defendant is not entitled to any quit notice, however, by way

of abundant caution, quit notice dated 23.04.2014 was issued

demanding the defendant to vacant the schedule premises by

31.05.2014 by paying arrears of damages/rent; that the defendant

filed suit O.S.No.425 of 2013 on the file of VI Additional Senior

Civil Judge, Visakhpatnam against Sampathirao Karunasri,

Sampathirao Rohit and Sampathirao Ramesh seeking permanent

injunction, though the named persons are not the owners of the

plaint schedule property and there is no landlord and tenant

relationship between them; that at the time of filing of O.S.No. 928

of 2014, 1st plaintiff is the absolute owner of the plaint schedule

property and pending suit, 1st plaintiff executed a registered gift

settlement deed dated 27. 03.2015 in favour of her grandson, 2nd

plaintiff; that the defendant was also informed about same and

eventually filed the suit for the reliefs stated supra.

8. The defendant filed written statement and contended that

Sampathirao Karunasri, W/o Ramesh, Sampathirao Rohit, S/o

Ramesh and Sampathirao Ramesh, S/o Appalaraju are the owners

of the schedule property; that they leased out the suit building to

the defendant for establishing a showroom for sale of CEAT and

TVS tyres on a monthly rent of Rs.15,700/-; that an advance of

Rs.3,00,000/- was also paid and the lease period is nine years;

that the rent was increased from February, 2012 and the present

rent being payable is Rs.16,900/- per month; that for the purpose

of establishment of showroom, defendant invested Rs.2,00,000/-

and also invested Rs.10,00,000/- for other works; that rents are

being paid regularly; that rent was sent through cheque for the

month of December, 2012, but the plaintiffs refused to receive the

same; that he entered into an oral agreement with Sampathirao

Karunasri and he is not aware of the plaintiffs and eventually

prayed the Court to dismiss the suit.

9. Basing on the pleadings, the following issues have been

framed by the trial Court:

1) Whether there is a jural relationship of landlord and tenant between plaintiff and defendant?

2) Whether there is a valid Quit Notice, if so, whether the lease between the plaintiff and defendant is determined?

3) Whether the plaintiff is entitled for past profits of Rs.85,400/-?

4) Whether the plaintiff is entitled for future damages for use and occupation at Rs.50,000/-?

5) Whether the plaintiff is entitled for recovery of possession of the schedule property after evicting the defendant?

6) To what relief?

10. Originally, suit O.S.No.425 of 2013 was filed on the file of VI

Additional Senior Civil Judge's Court, Visakhapatnam and

subsequently, the same was transferred to the Principal Senior

Civil Judge's Court, Visakhapatnam as per the order in Transfer

O.P.No.612 of 2016. O.S.No.425 of 2013 is clubbed with

O.S.No.928 of 2014 and the evidence was recorded in O.S.No.928

of 2014.

11. On behalf of plaintiffs, 2nd plaintiff was examined as P.W.2

and got marked Exs.A-1 to A-4. On behalf of defendant, defendant

examined himself as D.W.1, got examined D.W.2 and got marked

Exs.B-1 to B-18.

12. The trial Court on consideration of oral and documentary

evidence, vide common judgment dated 18.10.2019 decreed suit

O.S.No.928 of 2014 and directed the defendant therein to

handover the suit schedule property to the plaintiffs within three

months from the date of judgment and also granted other reliefs.

Suit O.S.No.425 of 2013 filed by the appellant herein, being the

plaintiff, was dismissed. Aggrieved by the said decrees and

judgments, the appellant herein filed A.S.No.438 of 2019 and

A.S.No.439 of 2019 respectively.

13. The appellate Court being final fact finding Court, has

framed the following points for consideration as contemplated

under Order 41 Rule 31 of CPC:

1) Whether there is jural relationship between plaintiffs/ landlords and defendant/tenant?

2) Whether lease has been determined by efflux of time?

3) Whether the findings of learned Principal Senior Civil Judge, Visakhapatnam need to be interfered with for getting the impugned judgment and decree, passed in O.S.No.928 of 2014 dated 18.10.2019 set aside?

4) Whether the findings of learned Principal Senior Civil Judge, Visakhapatnam need to be interfered with for getting the impugned judgment and decree passed in O.S.No.425 of 2013 dated 18.10.2019, set aside?

5) To what relief?

14. The first appellate Court on careful consideration of oral and

documentary evidence, dismissed both the appeals vide judgment

dated 14.06.2021. Against the judgment and decree in A.S.No.439

of 2019, the present second appeal was filed.

15. Learned counsel for appellant/tenant would contend that

after expiry of lease, appellant/tenant continued in premises by

paying rents and the same was accepted by land lord, hence the

appellant being a tenant holding over and hence Ex A-2 quit notice

is not valid. He would further contend that the appellant has been

regularly depositing the rents without any default and he thus,

prayed the Court to allow the second appeal.

16. Learned counsel for respondents would contend that, the

appellant is not a tenant holding over. There is no landlord and

tenant relationship after expiry of tenancy by efflux of time by

express terms or impliedly. Quit notice issued under Ex.B-2 is

valid in the eye of law. He would further contend that the appellant

is not paying monthly agreed rents, except complying the interim

order passed by this Court i.e. deposit of Rs.85,400/- and suit

costs. He would support the judgments of the Courts below and

prayed to dismiss the second appeal.

17. As stated supra, while admitting the second appeal, the first

substantial question of law framed by this Court is thus:

1) Whether the Courts below are justified in ordering eviction without considering whether the appellant is a tenant holding over and if found so, whether the notice issued under Section 106 of the Transfer of Property Act is valid?

18. Whether the appellant can be termed as tenant holding over?

19. Section 116 of the Transfer of Property Act, 1882 (for short

"TP Act") reads as follows:

116. Effect of holding over.--If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.

20. A perusal of Section 116 of TP Act makes it clear that if the

lessee remains in possession after determination of lease and if the

lessor or his legal representatives, accepts the rents from lessee or

otherwise assents to his continuing in possession, the lease is, in

the absence of an agreement to the contrary, renewed from year to

year, or from month to month, according to the purpose for which

the property is leased, as specified in Section 106.

21. Pleadings and evidence as well as documents marked in the

suit, manifest that 1st plaintiff/1st respondent having purchased

the property under a registered sale deed dated 02.05.2007, leased

out the premises to the defendant in November, 2007 for a period

of five years. In fact, the defendant being tenant admitted about

gift deed - Ex.A-1 and also about issuing cheque in the name of 2nd

plaintiff towards rent. The lease was expired by afflux of time by

October, 2012.

22. The appellant is unsuccessful in proving that after the lease

was expired by efflux of time i.e. by October 2012, land lord

extended lease either expressly or impliedly or the landlord accept

the rents. The evidence on record manifests that after the lease

was expired, appellant paid rents till January, 2013 that to with

short fall. The payment of rents for three or four months does not

qualify the test mandated in Sec 116 of the T.P.Act.

23. Hon'ble Apex Court in Kewal Chand Mimani (d) by Lrs. and

Ors. Vs. Respondent: S.K. Sen and Ors.1 held that there is a

subtle difference between a tenant holding over and a tenant-at-

sufferance. Holding over stands equivalent to the retention of

possession after determination of lease, but with the consent of the

landlord, whereas, on similar circumstance if the possession is

without the consent of the landlord then the same stands out to be

a tenant-at-sufferance.

24. The High Court of Karnataka in M/s Sudarshan Trading

Co. Ltd. Vs. L.D'Sauza2, pointed out that:

"Tenancy by holding-over is a creature of bilateral, consensual act and does not come into existence by a mere unilateral intendment or declaration of one of the parties. In the absence of any evidence that the plaintiff or her husband have agreed to receive the rent after the expiry of the lease on 30-11-1984, the fact that the defendant had credited some amounts to the plaintiff's bank account unilaterally does not create a tenancy by holding-over.

AIR 2001 SC 2569

AIR1984 Kant 214 = MANU/KA/0206/1984

25. As noted supra, after expiry of lease by efflux of time, land

lord issued Ex.A-2 notice dated 23.04.2014 demanding the

appellant to vacate the premises by 31.05.2014. Even assuming

that the appellant is termed as tenant holding over, without paying

rents, by issued notice under Ex.A-2, the landlord determined the

lease. Thus, in the case on hand, the appellant cannot be termed

as tenant holding over.

26. Though appellant/defendant examined D.W.2, his

evidence do not support the case of defendant. No document was

filed by appellant to show that rents are being paid from February

2013. It is also pertinent to mention here that the

appellant/tenant went to the extent of denying title of the landlord,

notwithstanding the fact that he paid rents to 2nd plaintiff. The

tenant, in fact, is estopped from questioning the title of the

landlord under Section 116 of the Indian Evidence Act.

27. Whether the acceptance of rent after issuance of quit notice

would amount to waiver was considered by the Apex Court in

Sarup Singh Gupta Vs. S.Jagdish Singh and Ors.3 held that

accepting the rent tendered for a period subsequent to quit notice,

even while prosecuting the suit, cannot be said that the landlord

intended to waive the quit notice and treat the lease as subsisting.

28. In the case on hand, the landlord did not accept or consent

to continue the tenant in the demised premises. The act of holding

over must be by a bilateral act and it does not come into existence

by a mere unilateral act of deliberation of one of the parties. The

tenant also could not place any acceptable evidence that after

AIR 2006 SC 1734

issuance of quit notice, the landlord allowed the tenant to continue

in the premises by a bilateral act.

29. Thus this Court holds that the appellant is not a tenant

holding over and is not entitled to the benefit under Sec 116 of the

Transfer of Property Act. Going by the record, the appellant is not

paying rents also. The findings of fact, recorded by the Courts

below, calls for no interference under Section 100 of CPC.

30. The other substantial question of law framed by this Court is

thus:

2) Whether the lease which is oral is to be treated as a lease from month to month or the same is a lease for a fixed period and whether the quit notice is to be given on the basis of the nature of the lease or otherwise?

31. Admittedly, leased premise is a shop and the tenancy is oral

in nature. Initially the period agreed between the parties is for five

years. A lease of immovable property for any other purpose other

than agricultural or manufacturing, shall be deemed to be a lease

from month to month, terminable, on the part of either lessor or

lessee, by fifteen days' notice. Quit notice under Ex.A-2 was issued

demanding the tenant to vacate the premises by 31.05.2014 is

valid notice and Ex A2 is in consonance with Sec 106 TP Act.

32. Thus, this Court is of view of that no questions of law much

less substantial questions of law involved in the above appeal.

Hence, the appeal is liable to be dismissed, however, without costs.

33. The appellant has been continuing in the schedule premises