Andhra Pradesh High Court - Amravati

Kethireddy Gopala Reddy, vs Paluru Siva Prasad, on 21 September, 2022

     THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               SECOND APPEAL No.400 of 2022

JUDGMENT:

1st Defendant in suit filed the above second appeal,

aggrieved by the judgment and decree dated 30.06.2022 in

A.S.No.87 of 2017 on the file of Principal District Judge,

Vizianagaram, confirming the judgment and decree dated

23.10.2017 in O.S.No.81 of 2010 on the file of Senior Civil

Judge, Vizianagaram.

2. Parties to this judgment are referred to as they are

arrayed in the plaint.

3. Plaintiff filed suit O.S.No.81 of 2010 seeking ejectment of

1st defendant from the plaint schedule property; to deliver

vacant possession to the plaintiff and defendants 2 to 5; to

direct the 1st defendant to pay arrears of Rs.82,128/- from

December, 2008 to December, 2009 with subsequent interest

and also direct the 1st defendant to pay future damages @

Rs.15,000/-per month from the date of suit till the date of

vacating the property.

4. In the plaint, it was contended interalia that plaintiff and

defendants 2 to 5 are the family members and the schedule

property is their property; that 1st defendant approached the

plaintiff, defendants 2, 3 and husband of 4th defendant; that in

May, 1994, plaintiff, defendants 2, 3 and husband of 4th

defendant accepted to lease out the schedule property to 1st

defendant to run hotel business; that they entered into a lease

agreement dated 31.05.1994 for a period of five years; that 1st

defendant started hotel business in the name and style of Hotel

Swapna; that 1st defendant approached plaintiff, defendants 2,

3 and husband of 4th defendant for extension of lease for a

further period of five years and accordingly, a fresh lease was

executed; that 1st defendant agreed to pay Rs.5,500/- per

month towards rent; that 1st defendant committed default in

payment of shop rent to the plaintiff from December, 2008; that

plaintiff needs the schedule property for personal occupation to

run business; that the plaintiff got issued a legal notice dated

21.04.2009 demanding 1st defendant to vacate and handover

possession by 09.06.2009; that 1st defendant received notice

and issued reply with false allegations; that defendants 2 to 5,

being co-owners are not cooperating and hence, they were

shown as defendants and thus, filed the suit.

5. Defendants 1, 3 and 5 filed separate written statements

and 2nd defendant adopted the written statement filed by 3rd

defendant. Defendants 2 and 3 though denied the averments in

the plaint, in a way supported the case of plaintiff. 5th

Defendant also reported no objection to decree the suit.

6. 1st Defendant filed written statement and contended

interalia that for the notice issued by the plaintiff, he got issued

a suitable reply notice; that originally schedule property

belonged to Paluri Satyanarayana, father of plaintiff, defendants

2, 3 and father-in-law of 4th defendant; that during his lifetime,

he constructed slabbed structure and the skeleton was leased

out to Chandana Mohanarao of Chandra Brothers, Viskhapatna

for a period of 30 years, but the said Chandana Mohanarao did

not open the shop room in the said premises; that 1st defendant

interfered into this affair and at his request, property was leased

out to him; that plaintiff, defendants 2, 3 and husband of 4th

defendant took an advance of Rs.1,00,000/- each; that they also

promised to repay the amount invested by 1st defendant; that 1st

defendant has been paying rents regularly; that even after

issuance of notice, plaintiff collected rents from 1st defendant;

that one of the plaintiff's brother Paluri Satyanarayana filed suit

O.S.No.41 of1986 on the file of Senior Civil Judge, Vizianagaram

for partition and he also filed E.P.No.89 of 2004; that plaintiff

suppressed the said facts; that A.S.No.75 of 1997 is still

pending before and eventually prayed to dismiss the suit.

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

following issues:

1) Whether the 1st defendant became trespasser and doing hotel business unauthorizedly in the plaint schedule property?

2) Whether the plaintiff is entitled to vacate the 1st defendant from the plaint schedule property and for vacant possession, as prayed for?

3) Whether the plaintiff is entitled for arrears of rent as prayed for?

4) Whether the plaintiff is entitled for future damages as prayed for?

5) To what relief?

8. On behalf of plaintiff, the plaintiff examined himself as

P.W.1 and got examined P.W.2. Exs.A-1 to A-4 were marked.

On behalf of 1st defendant, he examined himself as D.W.1 and

got marked Exs.B-1 to B-13.

9. Trial Court on consideration of both oral and

documentary evidence decreed the suit vide judgment and

decree dated 23.10.2017. Trial Court directed 1st defendant to

vacate the schedule premises within four months. Also granted

decree for Rs.66,240/- with interest @ 6% p.a. from the date of

suit till the date of realization, however, negatived the claim of

future damages @ Rs.15,000/- per month.

10. Aggrieved by the said judgment and decree, 1st defendant

filed appeal A.S.No.87 of 2017. Lower appellate Court being

final fact finding Court on consideration of oral and

documentary evidence dismissed the appeal vide judgment and

decree dated 30.06.2002 and granted four months time to

vacate the schedule premises and handover vacant possession

of the same to the plaintiff and defendants 2 to 5. Assailing the

said judgment and decree, the present second appeal is filed.

11. Heard Sri Vedula Venkata Ramana, learned senior

counsel appearing on behalf of appellant and Sri Saripalli

Subrahmanyam, learned counsel for 1st respondent/caveator.

12. Learned senior counsel for appellant would contend that

notice issued under Ex.A-2 is not in consonance with Section

106 of Transfer of Property Act, 1882 (for short "T.P.Act") and

hence, the judgments of the Courts below are liable to be set

aside. He would further submit that original lease agreement is

unregistered lease deed and hence, it cannot be looked into. He

would also submit that ground of default in payment of rents

and bonafide personal requirement cannot constitute legal basis

for passing decree of eviction under the T.P.Act.

13. Learned counsel for the 1st respondent-caveator

supported the judgments of the Courts below.

14. Basing on the pleading and contention, the following

substantial questions of law arise for consideration:

1) Whether notice Ex.A-2 is in consonance with Section 106 of T.P.Act and hence, constitutes a valid notice?

2) Whether Ex.A-1 unregistered lease deed can be looked into, since the lease is for five years in view of bar under Section 17 in The Registration Act, 1908?

15. Undisputed facts are that suit schedule property is the

ancestral property of plaintiff, defendant 2, 3 and husband of

4th defendant. 1st defendant was inducted a tenant pursuant to

Ex.A-1 lease deed.

16. According to plaintiff, 1st defendant deposited

Rs.1,00,000/- when he was inducted into schedule premises as

tenant. However, 1st defendant contended that he paid

Rs.1,00,000/- each to the plaintiff, defendant 2, 3 and husband

of 4th defendant. According to the plaintiff, initially lease is for

five years from 31.05.1994 and the lease was extended by five

more years from 09.06.2004 and the rent payable is Rs.5,520/-.

By issuing Ex.A-2 legal notice on 20.04.2009, plaintiff indicated

in the notice that lease expires by 09.06.2009 and from

10.06.2009, 1st defendant will become trespasser. Since,

according to plaintiff, the tenancy came to an end by

09.06.2009 by virtue of Ex.A-2 notice, claimed damages @

Rs.15,000/-. 1st defendant issued reply notice under Ex.A-4

and pleaded that lease agreement was executed for ten years by

promising to renew the same for 30 years and also pleaded

about payment of advance amount. 1st defendant also pleaded

that he is not a trespasser from 10.06.2009 and the lease shall

continue for 30 years from the date of his possession i.e.

31.05.1994.

17. Lease is not a mere contract but envisages and transfers

an interest in the demised property by creating a right in favour

of lessee in rem. A lessee of a property has a right to the

possession and enjoyment of the demised premises to the

exclusion of the lessor. Duration of certain leases in absence of

written contract or local usage is being dealt with under Section

106 of T.P.Act.

18. Section 111 of T.P.Act deals with determination of lease,

which reads thus:

"A lease of immoveable property determines-

(a) by efflux of the time limited thereby: ...

...

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.

19. Section 113 of T.P.Act deals with waiver notice to quit.

According to the plaintiff, 1st defendant was inducted into

schedule property as tenant by the plaintiff, defendants 2, 3 and

husband of 4th defendant on 31.05.1994 for a period of five

years. According to 1st defendant, father of plaintiff, plaintiff,

defendants 2, 3 and husband of 4th defendant executed an

agreement of lease for a period of ten years and also promised to

renew the lease for a period of 30 years by enhancing the rent.

1st Defendant also pleaded that agreements of lease dated

31.05.1994 and 09.06.2004. A perusal of the plaint would

indicate that original lease agreement dated 09.06.2004 is in

the custody of 1st defendant, however, original lease deed dated

31.05.1994 was filed along with plaint and marked as Ex.A-1.

20. As per Ex.A-1, initial period of lease is for five years and

the same was extended for five more years and thus, lease came

to end by 09.06.2009. By issuing notice dated 20.04.2009

under Ex.A-2, plaintiff made it clear that lease expires by

09.06.2009 and there is no intention to the plaintiff to extend

the lease. Thus, the plaintiff determined the lease and directed

1st defendant to vacate the premises. The recitals in Ex.A-2

notice are extracted below:

"Hence you should surrender vacant possession by 09.06.2009 to my client without fail. Since 10.06.2009 you became a trespasser, and the tenancy in between you and my client seizes by 10.06.2009, if you fails to vacate and deliver vacant possession to my client by10.06.2009, you are liable to pay Rs.15,000/- per month towards damages for use and occupation.

Therefore, you are hereby informed and called upon that the lease period came to an end by 09.06.2009, and you should vacate and deliver vacant premises to my client by 10.06.2009 without fail, and also to pay arrears of rent from December, 2008 to till today".

21. A perusal of the above recitals in Ex.A-2 notice would

indicate that landlord determined the lease and is not intended

to extend the lease further. In the absence of contract or local

law or usage to the contract, lease of an immovable property

shall be deemed to be lease from month to month terminable on

the part of either lessor or lessee by 15 days notice. Ex.A-1 is

original lease agreement dated 31.05.1994 and both plaintiff

and 1st defendant admitted about execution of lease agreement

dated 31.05.1994. Learned senior counsel for the appellant

would contend that since Ex.A-1 is not registered document,

Court cannot look into contents of Ex.A-1, in view of bar under

Section 17 of the Registration Act. In the absence of Ex.A-1,

since there is no contract as contemplated under Section 106 of

the T.P.Act, lease between the plaintiff and 1st defendant should

be treated as lease of immovable property from month to month.

If the lease is treated, in this case on hand, is one under month

to month, notice issued under Ex.A-2 is a valid notice directing

the 1st defendant to vacate the premises by 10.06.2009. Notice

was issued under Ex A-2. Thus, the notice issued under Ex A-2

is in accordance with Sec 106 TP Act and plaintiff validly

determined the lease. Once the lease was determined, tenant

will not be allowed to squat on the property. Even under Sec

108 (q) the lessee on the determination of lease bound the put

the lessor into possession of the property.

22. Trial Court considered the effect of notice under Section

106 of the T.P.Act and decreed the suit eventually and also

directed the 1st defendant to pay Rs.66,240/- with interest @6%

p.a. Lower appellate Court, being final fact finding Court

confirmed the said finding.

23. The Courts below also considered filing of suit by one of

the co-owners by placing reliance in Shankara Coop. Housing

Society Ltd. Vs. M.Prabhakar and Ors.1, wherein the Hon'ble

Apex Court held that when the other co-owners do not dispute

the plaintiff, the plaintiff has a definite right to seek eviction, on

any one of the grounds viz., personal occupation or subsequent

default or willful default. Therefore, the plaintiff has got

absolute right, title and interest in every part and parcel of joint

property or coparcenary under the Hindu Law by all

coparceners and the 1st defendant has no right to close the

doors to the plaintiff seeking eviction on that count.

24. Whether the appellant can be claim status of tenant

holding over?

25. 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.

AIR 2011 SC 2161

26. A distinction should be drawn when the tenant is

continuing in possession after determining the lease without the

consent of landlord and the tenant doing so, with the consent of

landlord. If a person is continuing in the possession of

premises without the consent of landlord, he will be tenant at

sufferance and with the consent of landlord, he is tenant

holding over or tenant at Will.

27. The Hon'ble Apex Court in Kewal Chand Mimani (d) by

Lrs. and Ors. Vs. Respondent: S.K. Sen and Ors.2 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.

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

Co. Ltd. Vs. L.D'Sauza3, 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

AIR 2001 SC 2569

AIR1984 Kant 214 = MANU/KA/0206/1984

credited some amounts to the plaintiff's bank account unilaterally does not create a tenancy by holding-over.

29. In the case on hand, the Courts below evaluated the

evidence on record and came to conclusion that no evidence was

let in by the defendant regarding payment of monthly rents.

Hence, the contention of appellant/tenant that he is tenant

holding over falls to ground.

30. The Hon'ble Apex Court dealt with scope of Section 100

CPC in Hero Vinoth Vs. Seshammal4 and 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

AIR 2009 SC 1481

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 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."

31. 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 has to 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 substitute its own opinion unless the findings of the

Court are manifestly perverse and contrary to the evidence on

record.