Sri Kodandaramaswamy Vari Temple vs Kukati Ramaiah
2022 Latest Caselaw 6910 AP

     THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI


             SECOND APPEAL No.157 of 2019


JUDGMENT:

The above second appeal is filed under Section 100 of

the Code of Civil Procedure, 1908 (for short 'CPC') against the

judgment and decree, dated 28.11.2018 passed in A.S.No.10

of 2014 on the file of learned Senior Civil Judge Kovvur, SPSR

Nellore district, confirming the judgment and decree, dated

19.09.2014 passed in O.S.No.38 of 2012 on the file of learned

Principal Junior Civil Judge, Kovvur, SPSR Nellore District.

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

herein are referred to as they were arrayed in the O.S.No.38

of 2012.

3. Plaintiff filed suit O.S.No.38 of 2012 on the file of

learned Principal Junior Civil Judge, Kovvur for recovery of

amount.

4. In the plaint it was contended inter alia that in auction

conducted by the plaintiff-Temple, the defendant became

highest bidder in respect of Ac.4-54 cents in survey No.207/1

and Ac.2-65 cents in survey No.204/1 for an amount of

Rs.3,200/- and Rs.3,100/- respectively; that possession was

delivered to the defendant and defendant paid lease amount

up to 2006-2007; that the defendant committed default; that

as per Rule 19 of the Andhra Pradesh Charitable and Hindu

Religious Institutions and Endowments Lease of Agricultural

Lands Rules, 2003 (for short the 'Rules'), any lease after

expiry of three years shall be null and void and the person in

possession of the lands shall be deemed to be an encroacher

and thus, defendant is an encroacher of the land; that

plaintiff is entitled to recover amount towards damages for

use and occupation of the lands; that legal notice was issued;

that no reply was issued and the defendant did not pay the

amount inspite of repeated demands. Hence, suit was filed for

recovery of an amount of Rs.81,884/-.

5. Defendant filed written statement and inter alia

contended that defendant and others have spent huge

amount and made the lands fit for cultivation; that when the

authority of the Temple attempted to dispossess the

defendant in the year, 2007, defendant and others filed

petition before Regional Joint Commissioner, Endowments

Department, Tirupathi, informing about the

misrepresentations of the Trustee, D. Murali Krishna Reddy

and requested the authorities to let them continue till

30.06.2008; that the defendant vacated the suit schedule

land by 30.06.2008 and is neither tenant nor encroacher of

the land and hence, prayed to dismiss the suit.

6. Basing on the above pleadings, the trial Court framed

the following issues for trial:

1. Whether the defendant continued in possession of the

land leased out to him even after termination of

tenancy or whether the defendant vacated the land as

per terms of the lease?

2. Whether the suit is barred by limitation?

3. Whether the plaintiff is entitled for suit amount with

interest as prayed for?

4. To what relief?

7. During the course of trial, former Trustee of the

plaintiff-Temple was examined as PW1 and got marked

Exs.A1 to A3. Defendant examined himself as DW1 and

Ex.B1 is marked on his behalf.

8. The trial Court recorded categorical finding that lease

was expired on 31.03.2004. However, defendant was

permitted to cultivate the land up to 2008 and defendant

vacated the land and surrendered the same by 30.06.2008.

The defendant is not in possession of the land leased out to

him, after the lease as per ExA1. The trial Court also

concluded that the defendant is not in possession of the suit

schedule lands either as tenant or as encroacher after 2008.

With the said observation, the suit was dismissed by

judgment and decree, dated 19.09.2014.

9. Aggrieved by the judgment and decree, dated

19.09.2014 passed in O.S.No.38 of 2012 by the trial Court,

plaintiff preferred A.S.No.10 of 2014 on the file of learned

Senior Civil Judge, Kovvur.

10. The lower appellant Court being final factfinding Court,

framed the following points for consideration:

1. Whether the plaintiff is entitled for the suit amount along with interest as prayed for?

2. Whether there are any grounds to interfere with the judgment passed by the trial Court and is liable to be set aside?

3. To what relief?

11. The lower appellate Court, on a scrutiny of oral and

documentary evidence, dismissed the appeal by judgment

and decree, dated 28.11.2018. Aggrieved by the same, the

present second appeal is filed.

12. Heard Sri K. Gangirami Reddy, learned counsel for the

appellant and Sri M. Ravindra, learned counsel for the

respondent.

13. Learned counsel for the plaintiff contends that non-

issuance of reply by the defendant to the notice issued by the

plaintiff was not considered by both the Courts below. He

contends that continuation of the defendant after expiry of

lease period, entitles the plaintiff to claim damages.

14. Learned counsel for the defendant supported the

judgments of the Courts below.

14. Basing on the pleadings and contentions the following

substantial questions of law arise for consideration.

a. Whether non issuance of replay notice would amount

admitting the claim of plaintiff.

b. Whether the respondent can be termed as encroacher

and thus plaintiff is entitled to claim damages?

15. Before delving into the matter, since the appeal filed

under Section 100 CPC, this Court must see the scope of

Section 100 of CPC.

16. In "Yadavarao Dajiba Shrawane vs. Nanilal

Harakchand Shah (Dead) and Ors.1" the Hon'ble Supreme

Court held as under:

"18. From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final Court of fact is based on mis-interpretation of

2002 (6) SCC 404

documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal."

17. In the light of the expressions of the Hon'ble Apex Court

on the scope of interference of the High Court in second

appeal, this Court while exercising jurisdiction under Section

100 of the CPC must confine to the substantial question of

law involved in the appeal. This Court cannot re-appreciate

the evidence and interfere with the 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 exercising jurisdiction. This Court

cannot substantiate its own opinion unless the findings of the

Court are manifestly perverse and contrary to the evidence on

record.

18. Admitted facts of the case are that land of an extent of

Ac.4-54 cents and Ac.2-65 cents in survey Nos.207/1 and

204/1 respectively totaling to Ac.7-19 belong to the plaintiff

Temple. In the auction conducted by the plaintiff, the

defendant emerged as the highest bidder for Rs.3,200/- and

Rs.3,100/- respectively. The defendant vacated and

surrendered the land by 30.06.2008.

19. The main contention of the plaintiff as per the auction

under is that under Ex.A1, auction was conducted and the

lease period expired by 31.03.2004. Thereafter the defendant

cultivated the land up to 2008. After expiry of the lease in

2004, the status of the defendant is encroacher and hence,

plaintiff is entitled to get damages from the defendant for use

and occupation of land after expiry of lease period.

20. Learned counsel for defendant contended that when the

Trustee of the Temple misrepresented, the tenants made

representation and Regional Joint Commissioner,

Endowments Department, Tirupathi granted permission to

the defendant and others to continue and cultivate the land

till 30.06.2008. Accordingly, the defendant and others

cultivated the land till 30-6-2008 and the defendant handed

over the possession of the subject land to the plaintiff by

30.06.2008.

21. It is pertinent to mention here that the Trustee of

plaintiff-Temple admitted during his cross-examination that

the defendant paid lease amount till he vacated the land. The

authorities treated defendant as tenant and allowed to

continue him to cultivate the lands and received makta. At

no point prior to issuance of notice, the temple authorities

directed defendant to vacate the land and in fact as per the

evidence, defendant and other farmers made representation

to Regional Joint Commissioner and upon permission

cultivated the land till 30-6-2008. Later the defendant

handed over possession of land to authorities. Thus, in the

facts and circumstances of the case on hand, the defendant

cannot be termed as encroacher.

22. Though it was contended by PW1 that registered

notices were issued on 01.05.2007, 19.08.2010 and

19.04.2011 calling upon the defendant to pay the amount

due and deliver the possession, notices dated 01.05.2007 and

19.08.2010 were not filed. Notice, dated 19.04.2011 alone

was filed before the Court. By that time, admittedly, the

defendant is not in possession of the property. It was also

admitted that defendant paid makta as agreed under Ex.A2.

It is pertinent to mention here that Ex.A3/notice was issued

on 19.04.2011 demanding the defendant to deliver the

possession subsequent to conducting of auction. Defendant,

as per the evidence on record, vacated the land and handed

over the same to authorities on 30-6-2008. However, notice

under dated 19-4-2011 was issued, nearing to three years, as

if the defendant failed to vacate the land. Thus, non-issuance

of reply notice by defendant to the notice dated 19-4-2011

issued on behalf of plaintiff is of no consequence. It will not

by itself admit the claim of the plaintiff. Thus, this Court of

the opinion that non issuance of reply does not enure to the

benefit of plaintiff.

23. As per Section 102 of the Indian Evidence Act, the

burden is on the person, who would fail if no evidence is

adduced. The plaintiff, except making the statement that the

defendant is in possession of the plaint schedule property

even after the year, 2008 nothing was produced by PW1 to

substantiate said contention. On the other hand the

documents filed by the defendant show that defendant paid

makta up to 2008. Thus, the defendant cannot be termed as

encroacher. The lower appellate Court being final factfinding

Court having considered all the factors has come to the

conclusion that the defendant is not an encroacher and he

vacated the land by 30.06.2008. Therefore, lower appellate

Court held that plaintiff is not entitled for damages.

24. Findings of facts recorded by the Courts below are

based on appreciation of oral and documentary evidence.

Unless judgments suffer from perversity, interference under

Section 100 CPC will not be warranted. No question of law

much less substantial question of law is involved in this

appeal. Hence, the same is liable to be dismissed.

25. Accordingly this second appeal is dismissed at

admission stage. No costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

________________________________ JUSTICE SUBBA REDDY SATTI Date : 13.09.2022 ikn

THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

SECOND APPEAL No.157 of 2019

Date : 13.09.2022

ikn