Telangana High Court
Nagesh vs Sri A. Damodar Reddy on 21 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.52 of 2024
JUDGMENT:
The present Second Appeal is filed questioning the judgment
and decree, dated 19.09.2023, passed by I Additional District
Judge, Medchal-Malkajgiri District at Kushaiguda in AS.No.231 of
2022 (Old AS.No.159 of 2017), whereunder and whereby the
judgment and decree dated 29.04.2017 passed by the II Additional
Senior Civil Judge, Ranga Reddy District at L.B.Nagar in
O.S.No.309 of 2009 was confirmed.
2. The appellant is the defendant and the respondent is the
plaintiff in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The brief facts of the case, which led to filing of the present
Second Appeal, are that the plaintiff is owner of the suit schedule
mulgi apart from other mulgies and a three room portion shed at
the said premises. A rental agreement was entered between the
plaintiff and the defendant on 16.09.2004, for a period of eleven
months only, and as per the terms of said agreement, the defendant
has to pay Rs.20,000/- as advance, but, he has paid Rs.16,300/-
only, that too, in three instalments. The rent is being enhanced
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from time to time and the present rent is Rs.5,000 per month. Since
the said agreement is an unregistered one, the lease is to be treated
as a lease from month to month. As the plaintiff required the suit
schedule mulgi for his personal use, in the month of January, 2017,
he requested the defendant to vacate the muligi, but the defendant
avoided to vacate the said mulgi by giving evasive replies. The
defendant did not even pay rents from May, 2008. On the other
hand, the defendant filed a suit-OS.No.1363 of 2008 on the file of
the Court of II Additional Junior Civil Judge, Ranga Reddy District
seeking injunction restraining the plaintiff from evicting him from
the suit schedule mulgi. The plaintiff, therefore, got issued a legal
notice dated 05.01.2009 calling upon the defendant to vacate the
suit schedule mulgi by 01.02.2009, failing which, to pay the mense
profits, but, the defendant got issued a reply with false and baseless
allegations.
3.1. In the first week of January, 2009, the defendant sent
money order for a paltry sum, instead of paying Rs.5,000/- per
month, and therefore, the plaintiff has refused to receive the same.
Hence, the defendant is liable to pay the arrears of rent at
Rs.5,000/- per month for the period from May, 2008 to 31.01.2009,
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amounting to Rs.45,000/-, and to vacate and hand over the vacant
possession of the suit schedule mulgi to the plaintiff and also to
pay future mesne profits at Rs.10,000/- per month from 01.02.2009
till the date of handing over the vacant possession of the suit
schedule mulgi to the plaintiff. Hence, the suit.
4. The defendant filed written statement inter alia stating that
he paid Rs.20,000/- as advance to the plaintiff, but, not Rs.16,000/-
as alleged by the plaintiff. It was further stated that as per the terms
of lease, dated 16.09.2004, the rent has to be enhanced at 10% per
annum over and above the existing rent and by the date of filing of
the suit, the rent of the suit schedule mulgi was Rs.1,464/- per
month only, but not Rs.5,000/- per month, as alleged by the
plaintiff. It was further stated though he was willing to pay the rent
regularly, the plaintiff himself has refused to receive the rent from
December, 2008 and that the plaintiff has even refused to receive
the money sent through money order and therefore, he is not due
any amount towards arrears of rent and is also not liable to pay any
amount towards future mesne profits.
5. On the basis of above rival pleadings, the trial Court framed
the following issues for trial:
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"(1) Whether the plaintiff is entitled for eviction of the
defendant from the suit schedule property and entitled
vacant possession as prayed for?
(2) Whether the rent claimed by the plaintiff at
Rs.5,000/- in respect of the suit schedule property is
true and correct?
(3) Whether the defendant committed default in
paying the rent to the plaintiff?
(4) Whether the plaintiff is entitled to recover the
arrears of rent as prayed for?
(5) Whether the plaintiff is entitled to mesne profits as
prayed for?"
(6) To what relief?"
6. During the trial, on behalf of the plaintiff, P.Ws.1 and 2
were examined and Exs.A-1 to A-5 were marked. On behalf of the
defendant, D.Ws.1 and 2 were examined and Exs.B-1 to B-16 were
marked.
7. The trial Court, upon considering the oral and
documentary evidence and the contentions of both the parties and
in the light of the ratio laid down by the Hon'ble Supreme Court in
Nopany Investments (P) Ltd Vs. Santok Singh 1, decreed the suit
vide judgment 29.4.2017, holding that the tenancy of the defendant
over the suit schedule property was validly terminated by the
AIR 2008 SC 673
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plaintiff by issuing a quit notice dated 05.01.2009 under Ex.A-1
and therefore, the plaintiff is entitled for recovery of the vacant and
physical possession of the suit schedule property and also mesne
profits from the defendant.
9. On appeal, the first Appellate Court, in view of rival
contentions of both the parties, framed the following points for
determination:-
"(1) Whether the quit notice dated 05.01.2009 i.e.,
Ex.A1, satisfies the requirements of Section 106 of the
Transfer of Property Act?
(2) Whether the rent claimed by the plaintiff at
Rs.5,000/- per month in respect of the suit schedule
mulgi is true and correct?
(3) Whether the trial Court has no inherent
jurisdiction to entertain and try the suit in view of
Section 32 of the A.P.Buildings (Lease, Rent and
Eviction) Control Act?
(4) Whether the plaintiff is entitled for eviction of the
defendant from the suit schedule mulgi?
(5) Whether the plaintiff is entitled to arrears of rent as
claimed?
(6) Whether the plaintiff is entitled to mesne profits as
prayed for?
(7) Whether the impugned judgment and decree suffers
from any illegality, irregularity warranting
interference by this Court?
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(8) To what relief?"
10. The first Appellate Court, being the final fact-finding Court,
re-appreciated the entire evidence and the material available on
record and observed as hereunder:-
"From the above recitals of Ex.A-1notice, it is obvious
that the plaintiff determined the tenancy and required
the defendant to vacate and handover the vacant
possession of the suit schedule mulgi to him by
01.02.2009. Thus, in the opinion of this Court, it
satisfies the above requirements of Section 106(1) of
the Transfer of Property Act. Further, as held by the
Hon'ble Supreme Court in Nopany Investments
(Petitioner) Ltd's case (supra), filing of eviction suit
under general law itself is a notice to quit on the
tenant and that no notice to quit was necessary under
Section 106 of the Transfer of Property Act in order to
enable the landlord to get a decree of eviction against
the tenant. Thus, in any view of the matter, it can be
held that Ex.A-l-notice satisfies the requirements of
Section 106 of the Transfer of Property Act and the
plaintiff has validly terminated the tenancy of the
defendant."
11. As regards the quantum of rent, the first Appellate Court
observed as hereunder:-
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"The claim of the defendant as regards the quantum of
rent for the suit schedule mulgi is self-inconsistent.
Further, the defendant did not produce any evidence
to prove that the rent was either Rs.1,000/- or
Rs.1,464/- ог Rs.2,000/- as on the date of filing of the
suit. Another thing to be noted is that it is not that the
plaintiff has pleaded for the first time in this suit that
the rent for the suit schedule mulgi is Rs.5,000/- per
month. He, in his written statement i.e., Ex.B14, filed
in O.S.No.1363 of 2008 that was filed by the
defendant for injunction also, has categorically stated
that the defendant failed to pay the rent of Rs.5,000/-
per month. The defendant did not elicit anything
contra from the plaintiff/PW1 to disprove his case
that the rent for the suit schedule mulgi was at
Rs.5,000/- per month."
11.1. The first Appellate Court further observed that the
plaintiff set the law in motion for eviction of the defendant by
getting issued Ex.A-1-notice under Section 106 of the Transfer of
Property Act, which is valid, and so the plaintiff is entitled to seek
eviction of the defendant from suit schedule mulgi and also for
mesne profits at Rs.10,000/- per month from 01.02.2009 till the
date of handing over the vacant possession of the suit schedule
mulgi to the plaintiff.
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12. Heard Sri K.Sreenivas, learned counsel for the appellant
and Sri Malipeddi Srinivas Reddy, learned counsel for the
respondent. Perused the record.
13. A perusal of the record discloses that both the trial court as
well as the first Appellate Court concurrently held that the oral and
documentary evidence adduced by both the parties proved that the
plaintiff is entitled for recovery of vacant and physical possession
of the suit schedule property from the defendant and the defendant
committed default in paying the admitted rent in respect of the suit
schedule property from May, 2008 onwards and accordingly,
directed the defendant to pay the arrears of rent from May, 2008 to
30.01.2009 @ Rs.5,000/- per month and also mesne profits from
01.02.2009 @ Rs.10,000/- per month.
14. Learned counsel for appellant argued that the trial Court
decreed the suit without proper appreciation of the evidence and
the first Appellate Court also committed an error in confirming the
judgment and decree passed by the trial Court.
15. However, learned counsel for appellant 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
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factual in nature and do not qualify as the substantial questions of
law in terms of Section 100 C.P.C.
16. 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 on
facts arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
17. Further, in Gurdev Kaur v. Kaki 2, 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.
18. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
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 appellant are factual in
(2007) 1 Supreme Court Cases 546
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nature and no question of law much less a substantial question of
law arises for consideration in this Second Appeal.
19. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
20. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:21.02.2024
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