Telangana High Court
Md. Salahuddin , Mukhtar vs P. Bapurao Died And 5 Others on 27 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.140 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 02.02.2023 passed in A.S.No.33 of 2016 on the file
of the I Additional Chief Judge, City Civil Court at
Secunderabad, confirming the judgment and decree dated
02.05.2016 passed by the XI Junior Civil Judge, City Civil
Courts, Secunderabad, in O.S.No.191 of 2008. Thus, the
present Second Appeal is filed against the concurrent findings of
trial Court as well as first Appellate Court.
2. For the sake of convenience, the parties are referred to as
they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal
are that the respondent No.1/plaintiff No.1 claims to be the
owner of the building situated in Plot No.1, beside Hanuman
Temple, Lothukunta main road, Secunderabad. The said
building consists of five shops, out of which, two shops i.e.,
shop Nos.4 and 5 (hereinafter referred to as 'the suit schedule
mulgies') were let out to the defendant No.1. Initially, the
monthly rent of the suit schedule mulgies was Rs.1,800/- and
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thereafter, it was enhanced to Rs.2,600/- per shop, on mutual
consent.
4. It was contended that the defendant No.1 was trying to
sublet the suit mulgies contrary to the terms and conditions of
the oral tenancy. Therefore, the plaintiffs filed O.S.No.1095 of
2006 seeking a direction to the defendant No.1 not to sublet the
suit mulgies to any third party and the said suit was dismissed
for default.
5. It is further contended that during the pendency of the
said suit, the defendant No.1 inducted another subtenant i.e.,
defendant No.2 herein in shop No.5 without the knowledge and
permission of the plaintiffs. Therefore, the plaintiffs got issued
a quit notice dated 27.10.2007 to the defendants under Section
106 of the Transfer of Property Act, 1882, terminating the
tenancy of the defendant No.1 w.e.f. 31.11.2007 by giving 15
days time and calling upon them to vacate and handover the
vacant possession on or before 01.12.2007. Though the
defendant No.1 received the said notice, the defendant No.2
avoided to receive the same. The defendant No.1 sent a reply
dated 07.11.2007 alleging that a blank ledger paper was sent in
the said cover. Therefore, the plaintiffs sent a copy of the quit
notice dated 27.10.2007 to the counsel for the defendant No.1,
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but, no reply was sent by the defendant No.1. Hence, the
plaintiffs filed the present suit.
6. The defendant No.1 filed written statements denying the
plaint averments and inter alia stating that he alone is doing
business in Shop No.4 as well as Shop No.5 and that he never
violated the terms and conditions of the oral tenancy.
7. Since the process was not paid against the defendant
No.2, the suit against him was dismissed on 12.12.2008.
8. On behalf of the plaintiffs, P.W.1 was examined and
Exs.A1 to A.16 were marked. On behalf of the defendants,
D.W.1 was examined and Exs.B1 to B23 were marked.
9. The trial Court, after considering the entire material
available on record, vide judgment and decree dated
02.05.2016, decreed the suit in part with costs, and the
defendant No.1 was directed to vacate and handover the vacant
possession of the suit schedule shops to the plaintiffs within
two months. Aggrieved by the same, the defendant No.1 filed
A.S.No.33 of 2016. The lower appellate Court on re-appreciation
of the entire evidence and perusal of the material available on
record vide judgment and decree dated 02.02.2023 dismissed
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the appeal confirming the judgment and decree passed by the
trial Court. Hence, the present second appeal.
10. Heard Sri M.A.K. Mukeed, learned counsel for the
appellant and Sri M.V.S. Sarma, the learned counsel for the
respondents. Perused the record.
11. A perusal of the record discloses that both the Courts
below concurrently held that the plaintiffs are entitled for
eviction of the defendant No.1 from the suit schedule shop
Nos.4 and 5 and are entitled for delivery of vacant possession of
the same.
12. Learned counsel for appellants vehemently argued that
the trial Court decreed the suit without proper appreciation of
the evidence and the lower appellate Court also committed an
error in confirming the judgment and decree passed by the trial
Court.
13. However, learned counsel for appellants failed to raise any
substantial question of law to be decided by this Court in this
second appeal. In fact, all the grounds raised in this appeal are
factual in nature and do not qualify as the substantial
questions of law in terms of Section 100 C.P.C.
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14. It is well settled principle by a catena of decisions of the
Apex Court that in the Second Appeal filed under Section 100
C.P.C., this Court cannot interfere with the concurrent findings
arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
15. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held
that the High Court sitting in Second Appeal cannot examine
the evidence once again as a third trial Court and the power
under Section 100 C.P.C. is very limited and it can be exercised
only where a substantial question of law is raised and fell for
consideration.
16. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the
Appellate Court, this Court finds no ground or reason
warranting interference with the said concurrent findings,
under Section 100 C.P.C. Moreover, the grounds raised by the
appellants are factual in nature and no question of law much
less a substantial question of law arises for consideration in this
Second Appeal.
(2007) 1 Supreme Court Cases 546
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17. Hence, the Second Appeal fails and the same is
accordingly dismissed at the stage of admission. No costs.
18. At this stage, learned counsel for appellant sought two
months time to vacate the subject premises. Accordingly, time
is granted as sought for subject to appellant filing undertaking
to that effect within a period of ten days from today, failing
which, time granted for vacating the premises stands vacated.
Pending miscellaneous applications, if any, shall stand
closed.
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LAXMI NARAYANA ALISHETTY, J
Date: 27.12.2023
Va/kkm
