Telangana High Court

Jai Laxmi Narasimha Restaurant ... vs V. Navnitha on 10 June, 2022

Bench: P Naveen Rao, M.G.Priyadarsini

HONOURABLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

CITY CIVIL COURT APPEAL NO.89 of 2019
&
CITY CIVIL COURT APPEAL NO.215 of 2019

Date: 10.06.2022

C.C.C.A.No.89 of 2019:

Between:
Jai Laxmi Narasimha Restaurant and Bar,
at H.No.12-2-565/A/1 and 16, Guddimalkapur,
Mehdipatnam, Hyderabad, rep.by its owner,
Goda Vijaya, w/o. Goda Venkateswarlu Goud,
Aged about 46 years, Occu;Business,
r/o.H.No.13-6-455/119, Heera Nagar,
Gudi Malkapur, Hyderabad and another.
..... Appellants
And
V.Navnitha w/o. V.Satish Kumar Jaiswal,
Aged about 45 years, occu: Housewife,
r/o.H.No.13-6-122, Karwan, Kulsumpura,
Hyderabad and another.
..... Respondents

This Court made the following:
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CCCA Nos.89 & 215 of 2019

HONOURABLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

CITY CIVIL COURT APPEAL NO.89 of 2019
&
CITY CIVIL COURT APPEAL NO.215 of 2019

COMMON JUDGMENT: (per Hon'ble Smt. Justice M.G.Priyadarsini)

Heard Mr. Vedula Srinivas, learned Senior Counsel

appearing on behalf of Mr. Chetluru Sreenivas, learned counsel

for the appellants and for respondent No.6 in CCCA.No.215 of

2019 and Mr.R.A. Achutanand, learned counsel for the

respondent Nos.1 and 2 in CCCA.No.89 of 2019 and for

respondent Nos.4 and 5 in CCCA.No.215 of 2019.

2. O.S.No.666 of 2015, O.S.No.856 of 2016 and O.S.No.857

of 2016 were heard together and by common judgment dated

4.1.2019 trial Court dismissed O.S.No.666 of 2015 and

O.S.No.856 of 2016 and allowed O.S.No.857 of 2016. Against

decision in O.S.No.857 of 2016, CCCA No.89 of 2019 is field by

the 3rd defendant/tenants. Against decision in O.S.No.666 of

2015, CCCA No.215 of 2019 is filed by the defendant Nos.4 and

5. No appeal is preferred against decision in O.S.No.856 of

2016.

3. As the dispute concerns same property these two appeals

are clubbed and heard together and this judgment covers both
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CCCA Nos.89 & 215 of 2019

appeals. For convenience, the parties are referred to as arrayed

in O.S.No.666 of 2015.

CCCA.No.215 of 2019:

4. The appellants herein are defendants 4 and 5 in

O.S.No.666 of 2015. The suit was filed praying to grant decree

of declaration that plaintiffs and defendants 4 to 22 are the

absolute owners of the suit 'A' and 'B' schedule properties; to

direct the defendant Nos. 1 to 3 to deliver peaceful and vacant

possession of the suit 'A' and 'B' schedule properties to the

plaintiffs by evicting the defendants 1 to 3 and to grant

consequential injunction restraining the defendants 1 to 3 or

persons claiming through them from interfering with the

ownership and possession.

5. Plaintiff No.1 is the wife of Late M. Pratap Reddy. Plaintiff

Nos.2 and 3 are their children. Defendant Nos.4 to 6, 12 and 13

are the brothers of late M.Pratap Reddy. Late M.Pratap Reddy

and defendants 4 to 6, 12 and 13 are the sons of late M.Ram

Narsimha Reddy; Defendants 14 to 17 are children of late

M.Rama Krishna Reddy; Defendants 18 to 22 are wife and

children of late M.Venkat Reddy; and Defendants 23 to 26 are

wife and children of late M.Bheema Reddy. According to

plaintiffs late M Ram Narsimha Reddy was the protected tenant

during his lifetime on a land to an extent of Ac.3.04 guntas
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CCCA Nos.89 & 215 of 2019

spread over Survey Nos.82, 83, 84 and 124 of Gudimalkapur

Village, Asifnagar Mandal, Hyderabad.

6. After demise of late M. Ram Narsimha Reddy, the

Tahsildar, Golconda Mandal granted succession certificate in

favour of legal heirs vide order dated 01.02.1982 under Section

40 of the Andhra Pradesh (Telangana Area) Tenancy and

Agricultural Lands Act, 1950 (for short, 'the Act'). Thereafter,

plaintiffs along with family members filed an application under

Section 32(1) of the Act for restoration of possession.

However, due to law and order problem in respect of the land in

the said survey numbers, the subject land was under the

custody of Tahsildar, Asifnagar Mandal.

7. On filing further application to restore possession, the

Tahsildar, Asifnagar Mandal passed order dated 12.02.2014

observing that plaintiffs are the legal heirs of original protected

tenant in respect of land to an extent of Acs.3.04 guntas in

Survey Nos.82, 83, 84 & 124 of Gudimalkapur Village, Asifnagar

Mandal, Hyderabad and therefore they are entitled for

restoration of possession of the land under Section 32(1) of the

Act, allowed the petition and directed the Mandal Revenue

Inspector to deliver possession of the above land to the

petitioners by conducting necessary panchnama.
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CCCA Nos.89 & 215 of 2019

8. As per the directions of the Tahsildar, Asifnagar Mandal,

the Revenue Inspector visited the above said land conducted

survey, demarcated the land and delivered possession of the

land to the plaintiffs and other family members on 14.02.2014

in the presence of the Village Revenue Officer, Police personnel

and Panchas. The said order was challenged by filing appeal

under Section 90 of the Act, and the Joint Collector, Hyderabad

District, passed order dated 31.10.2014 dismissing the appeal.

9. Plaintiffs allege that the husband of defendant No.1 had

illegally occupied the land admeasuring 150 square yards and

in collusion with her husband, fabricated a Gift Settlement Deed

dated 09.07.2010; that the husband of defendant No.2 illegally

occupied the land admeasuring 115 square yards and in

collusion with defendant No.2 fabricated Gift Settlement Deed,

and on the basis of the said Gift Settlement Deeds, the

defendant Nos.1 and 2 are claiming as owners of the suit

schedule properties; that defendant Nos.1 and 2 leased out 'A'

and 'B' schedule properties to defendant No.3 and defendant

No.3 is running business jointly in the above 'A' and 'B'

schedule properties. According to plaintiffs, the two suit

schedule properties form part of tenancy land of Acs.3.04

guntas.
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CCCA Nos.89 & 215 of 2019

10. In the written statement filed by defendant Nos.1 and 2

they raised the plea against maintainability of suit. It is their

case that as the plaintiffs are claiming rights over the suit

schedule property in the nature of protected tenant, as per

Section 99 of the Act, Civil Court has no jurisdiction to declare

a protected tenant as owner of the property under Section 34 of

Specific Relief Act, 1963, and as such, the suit is barred under

Section 9 r/w Section 21 of Civil Procedure Code, 1908. Even

otherwise the claim of the protected tenant as per Section 40 of

the Act is only to the extent of 60% share but not to the entire

extent.

11. Further, defendant Nos.1 and 2 denied claim of protected

tenancy as per the provisions of Section 38E of the Act, and in

failure to comply with provisions under Section 38E by the

protected tenant, another option would be to obtain sale

certificate under Section 38A of the Act before the Revenue

Tribunal, i.e., the Revenue Divisional Officer; since the protected

tenant has to pay the premium by issuing notice to the land-

holder and only after conducting detailed enquiry as per the Act,

the Revenue Divisional Officer is competent to issue sale

certificate; that the subject matter of the suit schedule property

does not form part of any of the revenue proceedings initiated by

the plaintiffs along with sailing defendants; and that there is
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CCCA Nos.89 & 215 of 2019

non-joinder of necessary parties, i.e., the husbands of defendant

Nos.1 and 2 and prayed for dismissal of the suit.

12. Based on the pleadings of the parties, the trial Court

framed following issues for consideration:

1. Whether this Court has territorial jurisdiction
to entertain the suit in view of status of plaintiffs as
protected tenant as per the provisions of A.P.
(Telangana Area) Tenancy and Agricultural Lands Act,
1950?

2. Whether the suit is barred under law as per
Section 19 of A.P (T.A.) Tenancy and Agricultural
Lands Act, 1950?

3. Whether the plaintiffs shall be declared as
absolute owner and entitle to recover possession in
view of Section 34 of Specific Relief Act?

4. Whether the plaintiffs are entitled for injunction
as prayed for?

5. To what relief ?

13. On behalf of plaintiff, P.W.1 was examined and

documents Exs.A1 to A.20 were marked. On behalf of

defendants DW1 to DW 4 were examined and documents Ex.B1

to Ex.B51 were marked.

14. In O.S.No.666 of 2015 the trial Court answered issues

1 to 4 against plaintiffs.
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CCCA Nos.89 & 215 of 2019

15. The following issues arise for consideration.

1. Whether appeal suit CCCA No.215 of 2019 is
maintainable?

2. Whether trial Court committed error in dismissing
O.S.No.666 of 2015.

3. To what relief ?

16. According to plaintiffs and defendants, other than

defendants 1 to 3, late M Ram Narsimha Reddy was the

protected tenant of land to an extent of Ac.3.04 guntas spread

over Survey Nos. 82, 83, 84 and 124, Gudimalkapur village and

they have succeeded to the said land. In O S No. 666 of 2015,

the prayer is three fold. To declare plaintiffs and defendants 4

to 22 as absolute owners of suit 'A' and 'B' schedule properties ;

to deliver peaceful and vacant possession of the said properties

by evicting defendant Nos. 1 to 3; and to grant injunction

restraining defendants 1 to 3 or through them any other person

from interfering with the ownership and possession.

17. The suit schedule properties bears municipal house

numbers. According to plaintiffs these two properties form part

of Acs.3.04 guntas of land spread over Survey Nos.82, 83, 84

and 124, Gudimalkapur village, claimed by plaintiffs on which
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CCCA Nos.89 & 215 of 2019

late M.Rama Narsimha Reddy was the protected tenant. This

plea of plaintiffs was rejected by the trial Court.

ISSUE No.1:

18. Before going into the merits, it is necessary to clear the

preliminary objection raised on behalf of defendants 1 to 3. It is

vehemently contended that defendants 4 and 5 in the suit

cannot file an appeal against dismissal of the suit.

19. Remedy of Appeal against the judgment and decree by the

trial Court is statutorily engrafted in the form of Section 96 of

CPC. Since, it is a statutory provision vesting right to avail

remedy of appeal, to avail such remedy the person must satisfy

the requirements of Section 96. Section 96 envisages that a

party aggrieved by the decree can file an appeal challenging the

said decree. In other words, provision envisages remedy in the

form of appeal only against a decree. When suit is dismissed, it

implies that the defendant has succeeded before the trial Court.

Any finding recorded by the trial Court in the process of

deciding the issue may have no impact on the defendant since

he has succeeded in the suit and suit was dismissed. However,

certain exceptions are carved out to this general principle, viz., if

a finding is recorded by the trial Court, which is binding on the

defendant it may operate as res-judicata in any legal

proceedings, then the defendant is entitled to assail the validity
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CCCA Nos.89 & 215 of 2019

of findings in the form of appeal; and when the judgment and

decree affects the right of a defendant even when suit is

dismissed.

20. There is large volume of precedent decisions on scope and

ambit of Section 96 and competency of defendant in availing the

remedy of appeal against dismissal of the suit. Few of them are

noted here under:

21.1. Supreme Court in Deva Ram v. Ishwar Chand1, held as

under:

"26. It is provided in Section 96 of the CPC that an appeal shall lie from every
decree passed by any court exercising original jurisdiction to the court authorised
to hear appeal from the decision of such court. So also, Section 100 provides that
an appeal shall lie to the High Court from every decree passed in appeal. Thus
sine qua non in both the provisions is the 'decree' and unless the decree is
passed, an appeal would not lie under Section 96 nor would it lie under Section
100 of the Civil Procedure Code. Similarly, an appeal lies against an 'order' under
Section 104 read with Order 43 Rule 1 of the Civil Procedure Code where the
'orders' against which appeal would lie have been enumerated. Unless there is an
'order' as defined in Section 2(14) and unless that 'order' falls within the list of
'orders' indicated in Order 43, an appeal would not lie.

27. Thus, an appeal does not lie against mere 'findings' recorded by a court
unless the findings amount to a 'decree' or 'order'. Where a suit is
dismissed, the defendant against whom an adverse finding might have
come to be recorded on some issue has no right of appeal and he cannot
question those findings before the appellate court. (See Ganga Bai v. Vijay
Kumar [(1974) 2 SCC 393 : (1974) 3 SCR 882] ."

(emphasis supplied)

21.2. Supreme Court in Sripathi Susheela v. K. Venkata

Ramana Rajeswari Devi2, held as under:

"15. A reading of this Section will immediately show that appeal lies from a decree
passed by the Court. Therefore, unless there is a challenge to the decree no appeal
can lie. This is the plain reading of Section 96 C.P.C."

(emphasis supplied)

1
(1995) 6 SCC 733
2
1996 SCC OnLine AP 271 : (1996) 3 ALD 890 : (1996) 3 ALT
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CCCA Nos.89 & 215 of 2019

21.3. Supreme Court in Baldev Singh v. Surinder Mohan

Sharma3, held as under:

"15. The first respondent in relation to his disputes with the appellant herein has
been pursuing his remedies in appropriate proceedings. What would be the effect
of the said judgment and decree in a departmental proceeding is required to be
determined by the appropriate authorities. Only because a departmental
proceeding was initiated against the appellant on the complaint of Respondent 1
he, only thereby, cannot be said to have any locus to prefer an appeal as has been
contended by Mr Srivastava. A person aggrieved to file an appeal must be one whose right is
affected by reason of the judgment and decree sought to be impugned. It is not the contention of
Respondent 1 that in the event the said judgment and decree is allowed to stand, the same will
cause any personal injury to him or shall affect his interest otherwise. Dissolution of marriage
of the appellant and his first wife would also have no repercussion on the property
in suit. As noticed hereinbefore, the effect of the aforementioned statements made
by the appellant in the second suit shall have to be considered by the courts and
the departments concerned on their own merits.
(emphasis supplied)

21.4. Supreme Court in Banarsi v. Ram Phal4, held as under:

"8. Sections 96 and 100 CPC make provision for an appeal being preferred from every original
decree or from every decree passed in appeal respectively; none of the provisions enumerates
the person who can file an appeal. However, it is settled by a long catena of decisions that to be
entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is
prejudicially or adversely affected by the decree he is not entitled to file an appeal.
(See Phoolchand v. Gopal Lal [AIR 1967 SC 1470 : (1967) 3 SCR 153] , Jatan
Kumar Golcha v. Golcha Properties (P) Ltd. [(1970) 3 SCC 573] and Ganga
Bai v. Vijay Kumar [(1974) 2 SCC 393] .) No appeal lies against a mere finding. It
is significant to note that both Sections 96 and 100 CPC provide for an appeal
against decree and not against judgment.
...........

10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:

(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.

(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.

(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross- objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the

(2003) 1 SCC 34

(2003) 9 SCC 606 PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.

(emphasis supplied)

21.5. Supreme court in State of A.P. v. B. Ranga Reddy5, held

as under:

"37. We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendant State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order 41 Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order 41 Rule 33 of the Code, the appellate court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it."

(emphasis supplied)

21.6. The Division Bench of High Court of A.P. in

Konda Lakshman Babu Ji v. State of A.P.6 held as under:

"5. It is well settled that a party who is adversely affected by the decree can alone appeal against it. In a case where a finding has been recorded against the defendant but the suit has been dismissed, he may challenge, that finding if it is res judicata and is binding upon him in future. In other words if the decree against the plaintiff could not have been passed without deciding an issue against the defendant, the defendant could probably challenge that finding in an appeal. However, if the plaintiff's suit can be dismissed without recording any finding against the defendant and yet if a finding has been recorded against the defendant, then such a finding is of no consequence because the success or failure of the plaintiff's suit is not interlinked with it and in a large number of cases depends upon the proof or otherwise of his own title. A plaintiff cannot succeed merely because the defendant has no title. Irrespective of whether a defendant has a title or not if the plaintiff fails to prove his title, his suit must fail. In other words if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the court would try and decide the case and the co-defendants would be bound by the decree. However, if the relief given to the plaintiff does not require the decision of a particular case, the co-defendants would not be bound as between them by any finding which might have been recorded in respect thereof. In a case of this type three conditions are necessary to be fulfilled. Firstly there must be a conflict of interest between the co-defendants. Secondly it should be necessary to decide that conflict in order to give the plaintiff and appropriate relief. Thirdly there must be a decision of the question between the co-defendants.

(2020) 15 SCC 681

1977 SC OnLine AP 56= 1977 ALT 352 PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

6. In Secretary of State v. Swaminatha] [1914 I.L.R. 37 Madras 25.] it has been laid down by a Division Bench of that court that no appeal lies against the decree which does not by itself in some way or other affect the appellant. It has been further observed in the decision that merely because there was an adverse finding in the judgment on a point not directly or substantially in tissue between the parties, a party aggrieved by such a finding would not have a right to contest it when the decree is entirely in his favour and does not necessarily imply that finding. In Venkobacharlu v. Radabayamma] [A.I.R. 1924 Mad. 858.] a Division Bench of the Madras High Court has laid down that for an appeal to lie, it is not necessary that the finding should be actually embodied in the decree. However, where a suit is dismissed and the judgment contains some findings as between co-defendants which are not embodied in the decree nor implied therein such findings do not amount to res judicata and are not appealable. In Mannam Latchaya v. Suryabatuni Kotamma] [1924 47 MLJ 743.] it has been held that a party in whose favour a decree has been passed cannot appeal against the decree merely on the ground that the finding on one of the issues is against him as such a finding would not be res judicata. In that decision a large number of earlier decisions have been reviewed. Reference may in particular be made to the decision in Jamait-Un-Nissa v. Lutf-Un-Nissa] [1885 ILR 7 All.] in which a Full Bench of Allahabad High Court held that a party not aggrieved by a decree was not competent to appeal against the decree on the ground that an issue was found against him. In Gogineni Bapayya v. Gogineni Ramakrishnayya] [AIR 1945 Mad.

39.] it has been held by a Division Bench of Madras High Court that the defendants having secured the dismissal of the suit as not maintainable in the manner prayed must accept it and as there was nothing in the decree which would affect the defendants adversely and as no finding in the judgment could operate as res judicata, no appeal by him was maintainable in Kesavan v. Lakshmy Amma] [AIR 1968 Kerala 154.] the principle which has been laid down is that in a case where there are two defendants who have a dispute inter se and if that dispute has been decided, one of the defendants aggrieved by the finding recorded on the contrary between the two [defendants can appeal against that finding only if it is res judicata against him in subsequent suit. It is therefore clear that if all the defendants have common interest in obtaining the dismissal of the suit filed by the plaintiff and if for dismissing the suit it is not necessary to decide the controversy between the defendants inter se, the finding recorded on the controversy between the defendants themselves would not be res judicata. No appeal in the aforesaid circumstances would lie againet the finding at the instance of the defendant aggrieved by it." (emphasis supplied)

22. The principles that emerge from above precedents can be

summarised as under:

1. An appeal under Section 96 of CPC lies against the decree in the suit.

2. An appeal does not lie against mere findings recorded by a Court unless the findings amount to a decree or order.

3. Where a suit is dismissed, even if an adverse finding is recorded against defendant on some issue, the defendant has no right to file appeal and can not question those findings before the appellate Court.

PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

4. To file an appeal, a person must be one whose right is affected by reason of judgment and decree.

5. Section 96 of CPC is silent on who can prefer appeal. However, to prefer an appeal, person must be prejudicially or adversely affected by the decree.

6. Unless there is a challenge to the decree no appeal shall lie.

23. Taking note of principles evolved in the above precedent

decisions, the issue requires consideration, having regard to the

peculiar facts of this case.

24. Plaintiffs and defendants 4 to 22 were all family members

and legal heirs of late N.Rama Narasimha Reddy, who was

recognised as protected tenant of land to an extent of Acs.3.04

guntas in Survey Nos.82, 83, 84 and 124 of Gudimalkapur

village. In the suit plaintiffs prayed to declare plaintiffs and

defendants 4 to 22 as absolute owners of suit 'A' and 'B'

schedule properties; to direct defendants 1 to 3 to deliver

peaceful and vacant possession of the suit 'A' and 'B' schedule

properties to the plaintiffs and to grant consequential injunction

restraining defendants 1 to 3 from interfering with the suit

schedule properties.

25. Issue no.3 formulated for consideration by the trial Court

in O.S.No.666 of 2015 is whether plaintiffs should be declared

as absolute owners and entitled to recovery of possession.

PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

While discussing the submissions and evidence on record on

issue no.3, trial Court held that plaintiffs failed to establish

whether the suit schedule property is part and parcel of

Acs.3.04 guntas of protected tenancy land. The trial Court

upheld the contentions of defendants 1 and 2 that since 1995

suit schedule structures were existed and suit is barred by

limitation for recovery of possession. Observing that

dispossession by defendants 1 and 2 or their husbands was not

established by the plaintiffs by placing cogent evidence, the trial

Court held that plaintiffs have not made out any case for

declaring them as absolute owners and title holders of suit

schedule 'A' and 'B' properties and therefore not entitled to

recovery of possession. Though, defendants 4 to 22 are arrayed

as defendants, plaintiffs and defendants are family members. All

of them together claiming that the suit schedule properties

belong to them and defendants 4 to 22 are supporting the

plaintiffs all along. As the first prayer sought by the plaintiffs is

to declare plaintiffs and defendants 4 to 22 as joint owners of

suit schedule 'A' and 'B' property, in fact, defendants 4 to 22 are

in disguise plaintiffs before the trial Court. The findings in the

judgment and the decree by the trial Court are equally binding

on defendants 4 and 5 and affects their right to claim the suit

schedule properties in any independent proceedings and

prosecute further litigation. Therefore, in the peculiar facts of PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

this case, the appellants are aggrieved by findings in the

judgment and the decree and are entitled to challenge the

judgment and decree rendered by the trial Court in O.S.No.666

of 2015. Thus, the objection on maintainability of appeal filed by

defendants 4 and 5 is stated to be rejected.

ISSUE No.2 :

26. Admittedly all the defendants except defendant Nos.1 to 3

and plaintiffs are the legal heirs of Late M.Ram Narsimha Reddy

and these defendants are sailing with the plaintiffs. As per the

order of the Collector, Hyderabad dated 20.12.1958,

late M.Ram Narsimha Reddy is declared as the protected tenant.

The Revenue authorities recognised plaintiffs and defendants 4

to 22 as legal heirs of late M.Ram Narsimha Reddy and

possession of the land to an extent of Acs.3.04 guntas in Survey

Nos.82, 83, 84 and 124 of Gudimalkapur village was delivered

to the plaintiffs and other family members on 14.02.2014 in the

presence of Village Revenue Officer, police personnel and

Panchas. As urged by the plaintiffs, the land was in the custody

of Tahsildar and defendant Nos.1 and 2 were never in

possession. Further, the order passed by the Tahsildar was

challenged before the Collector, and the Joint Collector passed

order dated 31.10.2014 dismissing the petition affirming the

order passed by the Tahsildar, Asifnagar Mandal.

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27. Based on the orders of the Tahsildar, the plaintiffs along

with defendant Nos.4 to 22 made an attempt to take possession

from Defendant Nos.1 and 2 over the suit schedule properties.

The defendants 1 and 2 filed Writ Petition No.231 of 2015

challenging the order of the Tahsildar and obtained interim

direction against the plaintiffs and others not to interfere with

possession and enjoyment of the schedule property. The said

interim direction is subsisting as on to-day.

28. It is pertinent to note that during cross-examination,

PW.1 has admitted that he has not filed original protected

tenancy certificate before the Court as the same was filed before

the Revenue authorities, and he has also not filed death

certificate of Late M. Ram Narsimha Reddy before the Revenue

authorities; and that he did not have knowledge about Khasara

Pahani, Seshala Pahani and other Pahani Records to show that

his grandfather was in possession in the above said survey

numbers, and the other documents, viz., Sethwar, Town Survey

Land Record (TSLR) and Vasul Bhaki were also not filed before

the Court; he admitted further that as per Section 40 of the Act,

the right of the protected tenant is 60% and that of land-lord is

40% till the protected tenant obtains 'Protected Tenant

Certificate'; that there were cases filed by them under Sections

40 and 32 of Tenancy Act, 1950 initially against Quamarunnisa

Begum in respect of the above mentioned survey numbers and PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

subsequently after the death of Quamarunnisa Begum, himself

and other family members filed a case against the legal heirs of

Quamarunnisa Begum and they have not made them as parties

in the present suit; that 40% of Pattedar rights were given to

Quamarunnisa Begum through Late M. Ram Narsimha Reddy;

that he cannot say under which document the ownership rights

have been transferred through the original pattedar and what

documents are available subsequent to his birth; that

constructions in plaint 'A' and 'B' Schedule properties are true.

29. During his cross-examination, PW.1 deposed that he has

not sought cancellation of registered Lease Deed and registered

Gift Deeds, but simply filed the present suit for declaration of

title, recovery of possession and consequential injunction and

that he has not issued any legal notice to defendant Nos.1 and 2

except issuing notice to defendant No.3; and further deposed

that he cannot say when he was put in possession of the suit

Schedule 'A' & 'B' properties and that he has not challenged the

withdrawal of rents by defendant Nos.1 and 2 deposited by

defendant No.3.

30. It appears serious disputes arose on various aspects of

the land leading to disturbance to law and order and Executive

Magistrate in exercise of powers vested in him under Section

145 of Cr.P.C., took control of the subject land and kept it in PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

possession of the Tahsildar. At the time of taking possession by

the Tahsildar, panchanama was conducted by Mr.Ghousuddin

Deputy MRO. Panchanama also contains the sketch drawn by

him. Panchanama records that the open land available and

taken possession is Ac.3.04 guntas excluding structures.

On 2.2.2005, the Deputy Mandal Revenue Officer, Asifnagar

submitted report to the Mandal Revenue Officer. This report

also discloses handing over of Ac.3.04 guntas of land minus

existing structures. The panchanama drawn on the same day

also emphasises the same aspect.

31. Ex.A-4 is a report submitted by Special Revenue

Inspector, Asifnagar, Hyderabad. By this report, he informs the

Tahsildar the exercise undertaken by him to identify the land

claimed by the plaintiffs in survey Numbers 82, 83, 84 and 124

of Gudimalkapur village and delivery of possession of the land.

He encloses to the report panchanama conducted by

Sri K.Balaiah, Deputy Mandal Revenue Officer, Asifnagar

mandal on 2.2.2005; sketch map drawn at that time; report of

the Deputy Mandal Revenue Officer along with sketch;

panchanama conducted on 18.10.2003 by Mr.Ghousuddin

Deputy Mandal Revenue Officer containing sketch. From the

report of the Special Revenue Inspector, it is apparent that he

placed reliance on sketch and reports earlier prepared in the

years 2003 and 2005.

PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

32. By proceedings of Tahsildar dated 12.02.2014 (Ex.A1),

the Tahsildar directed handing over of possession of the land to

the plaintiffs and their family members by withdrawing the

orders under Section 145 Cr.P.C. Accordingly, panchanama

(Ex.A3) was conducted on 14.2.2014. A report was drawn by

Special Revenue Inspector on same day and the land was

handed over to the family members of the plaintiffs. While

handing over the land again same thing was reiterated i.e.,

handing over of Ac.3.04 guntas excluding the structures as per

Ex.A4.

33. It is thus clear that even by the years 2003 and 2005 the

land identified in Sy.Nos.82, 83, 84 and 124 excludes five

structures and what was handed over to the family of the

protected tenant was Ac.3.04 guntas excluding the structures.

34. From Ex.B-16 to B-50 marked on behalf of defendants 1

to 3, it is apparent that even prior to 2003, to be precise, by

1995 structures were in existence and property was assessed for

payment of house tax and electricity and water connections

were provided. Therefore, it is clear that suit schedule

structures were in existence much prior to 1995 and at any rate

the family members of the protected tenant were aware of

existence of such structures when survey was conducted and

panchanama was drawn in the year 2003 and even in the year PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

2005. What was highlighted in the orders of Tahsildar (Ex.A1),

and the panchanama dated 14.2.2014 was only reflection of

what was recorded in the years 2003 and 2005. It is thus

apparent that the land taken possession by the Tahsildar in

pursuant to order made by Executive Magistrate in exercise of

power under Section 145 Cr.P.C., excluded the five structures

noticed on field and recorded therein and the suit schedule

properties are two structures out of these five structures

mentioned therein.

35. In a suit for declaration of title and possession, the

burden is on the plaintiff to adduce evidence in support of his

claim and cannot depend on the weakness in the evidence of

the defendant. Plaintiffs miserably failed to show that the

structures mentioned in suit schedule 'A' and 'B' are forming

part of Ac.3.04 guntas on which tenancy rights were conferred

on late N.Rama Narasimha Reddy. No evidence is brought on

record to show total extent of land in survey numbers 82, 83, 84

and 124, extent of land owned by the original pattedar and

whether any other person owned land. In the absence of clear

material to show that two houses mentioned in the schedule

appended to the suit were forming part of land on which

tenancy rights were recognised in favour of late N.Rama

Narasimha Reddy, declaration sought by the plaintiffs cannot be

granted.

PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

36. Evidence on record clearly points out that the suit

schedule structures were in existence even prior to 1995. It is

also apparent from Ex.B.22 notice dated 14.02.1995 issued by

the Municipal Corporation of Hyderabad that there were

structures by then. The Corporation alleged unauthorised

constructions which are the suit schedule properties. The

evidence relied on by defendants 1 to 3 also point out that

defendant No.3 is in physical possession of Schedule 'A' and 'B'

properties in the capacity of tenant and he was also paying

rents to defendant Nos.1 and 2. It is pertinent to note that

certificate under Section 39-E which would have clinched the

issue is not even produced by the plaintiffs for the reasons best

known to them to prove the ownership rights.

37. Further, Ex.B.11-Certified Copy of Caveat shows that

defendant No.4, viz., Sri M.Narender Reddy, son of

N.Ramanarsimha Reddy has surrendered the land held by him

to the original pattedar, viz., Mir Kutbuddin Khan and others.

Thus, he has no right, interest and title or possession in respect

of the property.

38. For all the aforesaid reasons, we are of the opinion that

the trial Court has not committed any error in dismissing the

suit.

PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

CCCA No. 89 of 2019:

39. This appeal is filed by the defendant in O.S.No.857 of

2016 who is tenant of suit schedule properties. The suit is filed

by defendants 1 and 2 in O.S.No.666 of 2015 praying to grant

decree of eviction of tenant. The trial Court granted decree of

eviction. Incidentally, O.S.No.1550 of 2014 (renumbered as

O.S.No.856 of 2016) was filed by third defendant in O.S.No.666

of 2015, a tenant of defendants 1 and 2 praying to grant decree

of perpetual injunction against plaintiffs, defendants 1 and 2

and other defendants in O.S.No.666 of 2015. O.S.No.856 of

2016 filed by tenant to grant decree for perpetual injunction was

dismissed. This has become final as no appeal is preferred.

40. Defendants 1 and 2 claim absolute owners of suit 'A' and

'B' schedule properties. They have leased out these properties

to defendant no.3. Rental deed was executed on 08.11.2012 for

a period of three years. The rental deed recorded the terms of

lease. It was agreed by the third defendant to pay monthly rent

of Rs.40,000/- to defendant no.1 and Rs.10,000/- to defendant

no.2. According to defendants 1 and 2 from the inception of

tenancy, the third defendant has not complied strictly with the

clauses of the rental deed with regard to Schedule 'A' and 'B'

properties and on several occasions, the cheques issued by the

third defendant were returned on the ground of 'insufficient PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

funds' by the bank. According to defendants 1 and 2, no rent

was paid from February, 2014 to September, 2014. Vexed with

the attitude of third defendant, the defendants 1 and 2 issued

legal notice dated 02.12.2014 narrating the violations of rental

deed and terminating the lease.

41. Defendant No.3 contended that he is a tenant of

defendant Nos.1 and 2 in terms of registered Rental Deeds dated

08.11.2012 executed by them in respect of 'A' and 'B' schedule

properties; during subsistence of lease agreements, defendant

No.3 had received legal notice from the plaintiffs and other

family members, claiming as absolute owners by having right,

title and interest over 'A' and 'B' suit schedule properties, and

demanded defendant No.3 to vacate 'A' and 'B' suit schedule

properties and to deliver vacant, peaceful possession along with

arrears of rent as per the proceedings of the Tahsildar, Asifnagar

Mandal dated 12.02.2014 within fifteen (15) days from the date

of receipt of the notice; that defendant No.3 informed the same

to defendant Nos.1 and 2; since defendant No.3 received rival

claims from one M. Sanjeeva Reddy and others, defendant No.3

stopped paying rents to defendant Nos.1 and 2. Alleging that

plaintiffs and other defendants are interfering in the possession

and enjoyment of the suit schedule properties, 3rd defendant

instituted O.S.No.856 of 2016.

PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

42. Based on the pleadings the following issues are framed by

the trial Court:

1. Whether the quit notice dated 02.12.2014 is true, valid and binding on the defendants ? If so, whether the plaintiffs have validly terminated the tenancy of the defendants in respect of suit schedule property ?

2. Whether the plaintiffs are entitled for eviction of defendants from the suit schedule property and for recovery of possession of the same ?

3. Whether the plaintiffs are entitled for future mesne profits as prayed for ?

4. To what relief ?

43. Issues 1 and 2 are answered in favour of the plaintiffs.

On issue No.3, the trial Court observed that the quantum of

mesne profits could not be decided as plaintiffs have to take

necessary steps for ascertaining mesne profits by filing

application under Order XX Rule 12 of CPC; and ordered for

eviction of tenants.

44. In CCCA No.89 of 2019, the following issues arise for

consideration:

1. Whether trial Court is right in ordering eviction of appellant from the suit schedule land by the judgment and decree rendered in OS No. 857 of 2016 ?

2. To what relief?

PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

45. Admittedly, there is no dispute with regard to relationship

of landlord and tenant. The lease was for a period of three (03)

years commencing from 08.11.2012 till 08.11.2015 and there

was no renewal of lease by the landlord, i.e., defendant Nos.1

and 2.

46. It is the assertion of defendants 1 and 2 that from

February, 2014 defendant No.3 stopped paying rent. In the

cross examination the defendant no. 3 could not dislodge this

assertion. There is a categorical denial to the suggestion on

payment of rent and not issuing receipts. She has also not lead

any evidence to support her contention that rents were paid

promptly and that no arrears of rent was due from her. It is

admitted that whenever rents were paid the owners issued

receipts in proof of payment of rent. Admittedly for the period

from February, 2014 to September, 2014 receipts as proof of

payment of rents were not produced by the defendant no.3. It

is not explained by the 3rd defendant why receipts were not

collected from the owners if rents were paid promptly. No

explanation is offered as to why she has not insisted rent

receipts when she was promptly collecting the receipts on

payment of rent earlier to February, 2014. In the legal notice

dated 2.12.2014 asking the defendant to vacate the suit

schedule 'A' and 'B' properties, it was asserted that rents were

not paid from February, 2014 to September, 2014. It was also PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

asserted that defendant was not paying electricity charges and

water cess. In the reply notice, defendant no.3 only vaguely

denied without furnishing the details of payment of rents and

payment of electricity and water charges. No evidence is lead to

show that rents were promptly paid.

47. In O.S.No.1550 of 2014 (renumbered as O.S.No.856 of

2016), third defendant filed I.A.No.892 of 2014 to permit her to

deposit rents in the Court. This I.A. was opposed by defendants

1 and 2. They contended that the third defendant was not

paying monthly rent from February, 2014. In support of their

contention, they have also produced receipt of rent books and

contended that the receipts disclosed payment of rent only up to

January, 2014. The trial Court observed that in view of

production of rent receipt books showing payment of rents only

up to January, 2014, the burden shifted to plaintiff and that

plaintiff failed to discharge the burden. Accepting the plea of

defendants 1 and 2, the trial Court directed the third defendant

to deposit arrears of rent from February, 2014. Though, in

C.R.P.No.4439 of 2015 filed by 3rd defendant this direction of

the trial Court was set aside by this Court, it was set aside on

the ground that issue of non-payment of rent before October,

2014 was not the subject matter of the suit and that O.S.No.857

of 2016 was pending. However, the order of the trial Court PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

discloses that it has perused receipt of rent books and those

books revealed payment of rent only upto January, 2014. No

other evidence is brought in the suit to dislodge the said finding.

48. It is thus apparent that the third defendant defaulted in

payment of rent from February, 2014 to September, 2014 and

deposited rent from October, 2014 only, after he obtained orders

from Civil Court in I.A.No.892 of 2014 in O.S.No.1550 of 2014

(renumbered as O.S.No.856 of 2016).

49. Clause-2 of the Lease Agreement (Ex.A18) under the

heading 'THE LESSEE HEREBY AGREES WITH THE LESSOR

AS FOLLOWS:', fixes the rent payable per month and schedule

of payment; i.e., rent to be paid on or before 10th of every

English month without accumulation of arrears. Clause-1

under the heading 'THE LESSOR HEREBY AGREES WITH THE

TENANT AS FOLLOWS:' fixes maximum grace period as 5 days

to deposit rent and in the event of breach of any condition land

lady reserves the right to determine the lease and to enter into

possession of the property.

50. The evidence brought on record by defendants 1 and 2

establishes that the defendant no.3 defaulted in payment of rent

and the lease is determined.

PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

51. Further, Section 116 of the Indian Evidence Act, 1872

restrains a tenant denying the title of the land lord of such

tenant during the continuation of tenancy. In the instant case

under the guise that plaintiffs issued legal notice directing her

to hand over possession of the suit schedule properties, he

stopped paying rents to defendants 1 and 2, and filed

O.S.No.1550 of 2014 impleading plaintiffs and all the other

defendants praying to issue decree of injunction not to interfere

in possession and enjoyment of suit schedule properties and

after securing orders from the civil Court started depositing

rents in the Court. Her actions are clearly contrary to statutory

mandate. Even otherwise, third defendant admitted of not

paying the rent for the month of October, 2014 when due and

deposited the rent in the Court after the Civil Court granted

interim order.

52. On the scope of Section 116 of Indian Evidence Act, few

decisions of the Apex Court are noted hereunder:

52.1. In Kamaljit Singh Vs Sarabjit Singh7 Hon'ble Supreme

Court held:

"14. Section 116 of the Evidence Act deals with estoppel against tenants and of licensees or persons in possession. Estoppel under this provision falls in the category of estoppel by contract and is relatively a recent development. The rule embodied in Section 116 simply prevents the tenant in occupation of the premises from denying the title of the landlord who let him into possession, just as it applies to a mortgagor or a mortgagee, vendor or a vendee,

(2014) 16 SCC 472 PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

bailer or a bailee and licensor or a licensee. The rationale underlying the doctrine of estoppel against the tenant's denial of title of his landlord was stated by Jessel, M.R. in Stringer's Estate, In re, Shaw v. Jones-Ford [Stringer's Estate, In re, Shaw v. Jones-

Ford, (1877) LR 6 Ch D 1 (CA)] as under: (Ch D pp. 9-10)

"... where a man having no title obtains possession of land under a demise by a man in possession, who assumes to give him a title as tenant, he cannot deny his landlord's title.... That is perfectly intelligible doctrine. He took possession under a contract to pay the rent as long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession, has not a title. That is a well-established doctrine. That is estoppel by contract."

15. There is considerable authority for the proposition both in India as well as in UK that a tenant in possession of the property cannot deny the title of the landlord. But if he wishes to do so he must first surrender the possession of the property back to him. He cannot, while enjoying the benefit conferred upon him by the benefactor, question the latter's title to the property. Section 116 clearly lends itself to that interpretation when it says:

"116.Estoppel of tenant and of licensee of person in possession.-- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."

16. A three-Judge of this Court in Sri Ram Pasricha v. Jagannath [Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184] reiterated the principle that a tenant in a suit for possession was estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The title of the landlord, declared this Court, even otherwise irrelevant in a suit for eviction of the tenant. The only exception to the rule of estoppel as stated in Section 116 (supra) may be where the tenant is validly attorned to the paramount title-holder of the property or where that the plaintiff landlord had, during the intervening period, lost his title to the property. We are not, however, dealing with a case where the respondent tenant claims that the property is vested in anyone else who could be described as the paramount title-holder or there was any extinction of the title of the appellant on any count whatsoever since the induction of the respondent as a tenant into the premises. We need not, therefore, be detained by any one of those considerations. What is important is that so long as a jural relationship exists between the respondent tenant and the appellant and so long as he has not surrendered the possession of the premises in his occupation, he cannot question the title of the appellant to the property. The inevitable inference flowing from the above proposition would be that (vis-à-vis the respondent) the appellant was and continues to be the owner of the premises in question since the year 1992 when the respondent was inducted as a tenant. Reckoned from the year 1992 the appellant has established his ownership of the premises for a period of five PNR,J & MGP,J CCCA Nos.89 & 215 of 2019

years before the filing of the eviction petition thereby entitling him to invoke the provisions of Section 13-B of the East Punjab Urban Land Restriction Act, 1949." (emphasis supplied)

52.2. In Omprakash Vs Mishri Lal8, Honble Supreme Court

held:

"34. That a tenant during the continuance of the tenancy is debarred on the doctrine of estoppel from denying the title of his landlord through whom he claims tenancy, as is enshrined in Section 116 of the Evidence Act, 1872, is so well settled a legal postulation that no decision need be cited to further consolidate the same. This enunciation, amongst others is reiterated by this Court in S. Thangappan v. P. Padmavathy [S. Thangappan v. P. Padmavathy, (1999) 7 SCC 474] and Bhogadi Kannababu v. Vuggina Pydamma [Bhogadi Kannababu v. Vuggina Pydamma, (2006) 5 SCC 532] . In any view of the matter, the appellants, being the son of Bhola Nath, who at all relevant time, was the landlord vis-à-vis the original defendant and the respondents in terms of Section 3(j) of the Act, their status as landlords for the purpose of eviction under the Act, could not have been questioned so as to non-suit them for want of locus." (emphasis supplied)

53. Thus, there was no cause for the third defendant in

defaulting in payment of rent merely because third party sets up

a claim, rushes to the Court praying to grant injunction and

seeks leave of the Court to deposit rent in the Court instead of

paying rents to his landlords. All this is done by doubting

landlords claim of ownership on suit schedule properties. In

view of Section 116 of the Indian Evidence Act, 1872 and the

law enunciated by the Hon'ble Supreme Court, the first

defendant is precluded from taking such plea and not paying

rent on that ground.

54. This Court is of the opinion that there is no bar against a

landlord to seek eviction even before expiry of the lease period,