Bellana Durga Rao, vs Gadela Venkata Lakshmi,
2022 Latest Caselaw 6528 AP

     THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               SECOND APPEAL No.103 of 2022

JUDGMENT:

Claim petitioner in E.A.No.27 of 2018 in E.P.No.16 of

2018 in O.S.No.55 of 2016 on the file of the Principal Junior

Civil Judge, Bheemunipatnam, filed the present second

appeal.

2. 2nd Respondent herein (tenant) filed suit O.S.No.55 of

2016 on the file of Principal Junior Civil Judge,

Bheemunipatnam against the 1st respondent herein (landlord)

seeking injunction in respect of plaint schedule property i.e.

RCC Slabbed shop bearing Door No.12-56/9, situated near

Rythu Bazar, covered by S.No.29/2 of Madhurawada,

Visakhapatnam.

3. 2nd Respondent herein pleaded that 1st respondent

herein is the owner of the property and 2nd respondent herein

obtained the schedule property from the husband of 1st

respondent on lease and has been running vegetable

business in the said shop. Later, they entered into a lease

agreement dated 12.03.2012 for a period of 24 months on a

monthly rent of Rs.3,500/-. It was further contended that

defendant received Rs.50,000/- from the plaintiff towards

interest free refundable advance. After expiry of lease,

another lease agreement was entered into between the parties

on 09.09.2015 for the period from 09.09.2015 to 08.08.2016

on a monthly rent of Rs.5,500/-. As the matter stood thus,

2nd respondent herein filed suit against the 1st respondent

seeking injunction. The matter was referred to Lok Adalat

and the same was settled in L.S.A.No.3 of 2017 in O.S.No.55

of 2016 dated 21.01.2017. As per the award passed by the

Lok Adalat, 2nd respondent herein must vacate the premises

by 30.11.2017. Since, the 2nd respondent did not vacate the

premises pursuant to the Lok Adalat award, 1st respondent

filed E.P.No.16 of 2018. In the said execution petition, claim

petition was filed by a third party, appellant herein.

(b) In the Claim petition it was contended interalia that

the claim petitioner is tenant in the schedule premises since

February, 2017; that by virtue of oral agreement between him

and G.Venkata Lakshmi, 1st respondent herein (land owner),

he has been paying monthly rent of Rs.10,000/-; that he also

paid advance of Rs.1,50,000/- to 2nd respondent; that 2nd

respondent and her men came to the schedule property on

03.11.2017 and threatened the claim petitioner to pay

another Rs.1,50,000/- to the 1st respondent and to increase

the rent from Rs.10,000/- to Rs.15,000/-, for which the

claim petitioner did not accept; that the claim petitioner filed

suit O.S.No.1147 of 2017 on the file of Principal Senior Civil

Judge, Visakhapatnam seeking perpetual injunction and he

also filed I.A.No.2499 of 2017 seeking ad interim injunction;

learned Principal Senior Civil Judge, Visakhapatnam granted

ad interim injunction and the same was extended from time

to time; that after receiving of summons, 1st respondent

herein filed vakalat and also filed written statement and later

she was set ex parte; that the 1st respondent filed application

to set aside exparte order; while the matter stood thus, 1st

respondent with her daughter and son-in-law came to the

schedule shop along with henchmen and abused the

petitioner, resulting in lodging complaint; that police

registered Crime No.442 of 2018; that the claim petitioner

also sent Rs.30,000/- towards three months rent, however,

1st respondent did not receive the same; that the claim

petitioner is a protected tenant and he is not aware of filing of

suit O.S.No.55 of 2016 and hence, he filed the claim petition

to declare that the claim petitioner is tenant of 1st respondent

and not to evict him from the schedule premises.

4. 1st Respondent herein filed counter and opposed the

application. It was contended inter alia that there is no

landlord and tenant relationship; that the claim petitioner

and 2nd respondent, are brother and sister; that they colluded

together brother filed claim petition; that the claim petition

itself is not maintainable under law and prayed to dismiss

the claim petition.

5. 2nd Respondent filed counter and contended that she

was tenant of 1st respondent and when 1st respondent tried to

evict her forcibly, she filed suit O.S.No.55 of 2016; that her

advocate colluded with the advocate of Decree Holder and

asked her to sign on some papers stating that the Decree

Holder is willing to continue her as tenant and she being an

illiterate, believed the version of her advocate and signed on

some blank papers in Lok Adalat; that in February/March,

2016, the 1st respondent approached her and requested to

vacate the schedule premises stating that she let out the

schedule premises to the claim petitioner and under those

circumstances, she vacated the shop and the claim petitioner

is running the shop and that she was not a necessary party

to the petition.

6. During the enquiry, the claim petitioner examined

himself as P.W.1 and examined P.Ws.2 to 4. Exs.P-1 to P-6

were marked. On behalf of respondents, 1st respondent

herself examined as R.W.1 and got examined R.W.2. Exs.R-1

to R-4 were marked.

7. Basing on the pleadings, the Executing Court framed

the following point for consideration:

Whether the claim petitioner is entitled for the relief to declare him as a tenant of the 1st respondent (decree holder) and not to evict him from the schedule shop premises except under due process of law as prayed for?

8. By order and decree dated 12.02.2020, the executing

Court dismissed the claim petition. Aggrieved by the same,

the claim petitioner filed appeal A.S.No.57 of 2020 on the file

of XII Additional District Judge, Visakhapatnam. The first

appellate Court being final factfinding Court, framed the

following points for consideration, in the appeal:

(1) Whether the claim petitioner is a tenant in the schedule premises?

(2) Whether the petitioner is a protected tenant and he shall not be evicted except under due process of law?

(3) Whether the order of the learned lower Court in E.A.No.27 of 2018 in E.P.No.16 of 2018 in O.S.No.55 of 2016 is erroneous?

9. On a careful consideration of entire evidence, both oral

and documentary, the first appellate Court dismissed the

appeal vide judgment and decree dated 15.09.2021.

Assailing the same, the above second appeal is filed.

10. Heard Sri M.Chinnayya, learned counsel for the

appellant/claim petitioner.

11. Learned counsel for appellant would submit that the

claim petitioner was inducted into claim petition schedule

premises as a tenant by 1st respondent herein. 1st respondent

under the guise of decree in O.S.No.55 of 2016 is trying to

evict him and hence, the claim petition.

12. In view of the contentions the following substantial

question of law would arise for consideration:

1) Whether the Courts below failed to consider that appellant status as tenant of claim petition schedule property?

2) Whether Appellant can maintain petition under Order 21 Rule 97 CPC in the facts and circumstances of the case?

13. Going by the pleadings, the undisputed facts are that

1st respondent herein is the owner of the schedule property.

Initially, 2nd respondent, tenant, filed suit O.S.No.55 of 2016

for perpetual injunction and the matter was referred to Lok

Adalat and an award was passed by the Lok Adalat in

L.S.A.No.3 of 2017 in O.S.No.55 of 2016 dated 21.07.2017

and as per the award, the 2nd respondent must vacate the

premises by 30.11.2017.

14. Claim petitioner is the brother of 2nd respondent, who

filed suit O.S.No.55 of 2016. According to the claim

petitioner, he was inducted into the schedule property in

February, 2017 on a monthly rent of Rs.10,000/-. It is

pertinent to mention here that claim petitioner, as per

averment in petition, paid Rs.1,50,000/- to the 2nd

respondent herein, but not to 1st respondent, who is the

owner. He also further pleaded that the 2nd respondent along

with her men came to the schedule shop on 03.11.2017 and

threatened him to pay another advance of Rs.1,50,000/- and

also enhance the rent from Rs.10,000/- to Rs.15,000/-, for

which he did not accept and filed suit O.S.No.1147 of 2017

against the 1st respondent seeking injunction, wherein Civil

Court granted ad interim injunction in I.A.No.2499 of 2017.

15. As per the counter filed by the 2nd respondent herein,

she vacated the shop and 1st respondent herein inducted the

claim petitioner as tenant and he is doing business.

16. As per the terms of compromise in O.S.No.55 of 2016

before the Lok Adalat on 21.01.2017, the 2nd respondent

herein must vacate the schedule premises by 30.11.2017.

According to 2nd respondent she vacated the premises much

before the time stipulated and the 1st respondent inducted

the claim petitioner as a tenant.

17. The claim petitioner examined himself as P.W.1 to

prove that he is tenant of schedule premises. He admitted

that as per Ex.P-2, shop No.8 with door No.12-56 is schedule

shop. According to him, he was inducted into possession of

Shop No.9 with door No.12-56 i.e. suit schedule property in

O.S.No.55 of 2016. However, he failed to explain the said

discrepancy which goes to root of the matter. Apart from the

same, according to claim petitioner, he paid Rs.1,50,000/- to

2nd respondent, but not to the land-owner. When the

Judgment Debtor is not claiming ownership over the

schedule property, the claim petitioner paying Rs.1,50,000/-

does not arise and this averment show the collusion between

appellant and 2nd respondent being brother and sister.

18. 2nd Respondent pleaded that the advocate of Decree

Holder and her advocate colluded together, and they misled

her. She further stated that in February, 2016, the Decree

Holder approached and asked her to vacate the premises

stating that she leased out the same to the claim petitioner,

as such she vacated the schedule premises. In this

connection, it is pertinent to mention herein that suit

O.S.No.55 of 2016 was disposed of in terms of compromise

before the Lok Adalat on 21.01.2017 and hence, the

contention that she vacated the shop in February, 2016 does

not arise. After compromise is recorded in Lok Adalat in

January, 2017, the 2nd respondent had to vacate the

premises by November, 2017. The claim petitioner filed the

claim petition, who is none other than the brother of

Judgment debtor seeking to recognize him as tenant of the

schedule premises. Thus, all these instances make the thing

more than discernable that to frustrate the decree in O.S.No.

55 of 2016, brother of plaintiff in that suit filed claim petition

as if he is tenant of schedule property.

19. As per the Field Assistant's report, the claim petitioner

objected for delivery of property on 07.09.2018, put lock to

the schedule shop and went away. The claim petition was

filed on 26.09.2018. The claim petitioner also filed suit

O.S.No.1147 of 2017 and I.A.No.2499 of 2017, wherein the

trial Court granted ad interim injunction in favour of claim

petitioner. The claim petitioner having filed suit O.S.No.1147

of 2017, in the considered opinion of this Court, cannot

maintain the claim petition under Order 21 Rule 97 of CPC.

The evidence on record does not inspire confidence of this

Court regarding the relationship of landlord and tenant

between the claim petitioner and 1st respondent herein.

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

basing on evidence and they do not call for interference of

this Court under Section 100 of CPC. The findings of fact

recorded by the Courts below are based on both oral and

documentary evidence. No questions of law much less

substantial questions of law arose in the appeal. Hence, the

second appeal is liable to be dismissed with costs.

21. Accordingly, the second appeal is dismissed at

admission stage. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 8th September, 2022

PVD