Telangana High Court
Mr. Dinesh Chand Gupta vs M.A.Majeed , Faheem on 1 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.153 of 2022
JUDGMENT:
Challenging the validity and legality of the judgment and
decree, dated 07.01.2022, passed by XI Additional Chief Judge,
City Civil Court, Hyderabad in AS.No.56 of 2018, whereunder and
whereby the judgment and decree dated 22.12.2017 passed by the
III Junior Civil Judge, City Civil Court, Hyderabad in O.S.No.2269
of 2015 was confirmed, the present Second Appeal is filed.
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 facts of the case, briefly stated, which led to filing of the
present Second Appeal, are the suit was filed praying the Court to
pass judgment and decree against the defendant for ejectment in
respect of the suit schedule property and for future mesne profits @
Rs.50,000/- per month from 01-09-2015 till delivery of possession.
3.1. In the plaint, it was inter alia stated that the plaintiff is the
landlord of the suit schedule property having obtained the same
under oral Hiba from his mother Smt Jani Begum on 26.08.2012
and thereafter, a memorandum of gift deed dated 11.09.2012 was
LNA, J
executed by Smt.Jani Begum. Originally, the mother of plaintiff-
Smt Jani Begum let out the schedule property to the defendant
under a lease by receiving a sum of Rs.4 Lakhs towards interest
free refundable deposit. The case in R.C.No.320 of 2010 on the file
of Principal Rent Controller, City Small Causes Court, Hyderabad,
was compromised between the parties. The rent of the schedule
property is Rs.12,000/- per month. The defendant paid the rent upto
May, 2015 and thereafter, committed willful default in payment of
rents. The plaintiff issued a legal notice dated 07.08.2015 to the
defendant by terminating the tenancy by the end of August, 2015
and requested the defendant to vacate and handover the suit
schedule property on or before 01.09.2015. The defendant failed to
vacate and handover the possession to the plaintiff. Hence, the
plaintiff approached the Court.
4. The defendant filed his written statement by inter alia
denying the averments made in the plaint. The defendant admitted
about the deposit of amounts with the landlord and the Rent
Controller proceedings and also the quantum of rent of the
schedule property @ Rs. 12,000/- per month.
LNA, J
4.1. The defendant further stated that as per the terms of the
compromise in R.C.No.320 of 2012 on the file of Principal Rent
Controller, City Small Causes Court, Hyderabad, the tenancy was
for a period of three years starting from May, 2012 to April, 2015
and after expiry of said three years, the tenancy shall be extended
by mutual understanding. The plaintiff received the rent for the
month of May, 2012, but he avoided receiving the rents for the
subsequent months of May, 2015.
4.2. It was further stated that the defendant is carrying business
in the suit schedule property and he will suffer irreparable loss if
the suit is allowed and prayed to dismiss the suit.
5. On considering the material on record, the trial Court
framed the following issues for consideration:-
"1. Whether the plaintiff is entitled for eviction of
defendant and recovery of vacant physical possession
of suit schedule property for the defendant as prayed
for?
2. Whether the plaintiff is entitled for future mesne
profits at the rate of Rs.50,000/- per month from
01.09.2015 till delivery of possession?
3. To what relief?"
LNA, J
6. On behalf of the plaintiff, P.W-1 was examined and Ex.A-1
to Ex.A-13 were marked. On behalf of the defendant, D.W-1 & 2
were examined and Exs.B-1 and B-2 were marked.
7. The trial Court, upon considering the oral and
documentary evidence and the contentions of both the parties,
observed as follows:-
"D.W-1 in his cross-examination admitted that since from
the date of inspection of tenancy, the plaintiff used to pass
the rent receipts and he acknowledges on the counter foils
of the rent receipts. Ex.A2 rent receipt book. The above
admission of DW1 clearly shows that the defendant
accepted that the plaintiff is the owner of the property and
during the course of tenancy, he never raised any objection
with regard to the entitlement of plaintiff to receive the
rents of the schedule property and questioned the title of
plaintiff. The long practice of payment of rents to the
plaintiff by the defendant itself shows that there is a jural
relationship of landlord and tenant in between the plaintiff
and defendant. In the light of above admission, it can be
concluded that the plaintiff is the landlord of the tenanted
premises and the defendant is his tenant."
7.1. The trial Court further observed that admittedly, there is no
renewal of lease deed executed by the parties after expiry of three
years i.e., after the month of April, 2015. Even after receipt of
LNA, J
Ex.A-3 quit notice, the defendant failed to vacate the suit premises.
As such, the plaintiff is entitled for eviction of the defendant and
recovery of vacant physical possession of the suit schedule
property.
8. On appeal, 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:-
"The defendant issued Ex.A-5 which is reply notice
dated 20.08.2015 and in the said reply notice he has
categorically admitted that plaintiff is the landlord of
suit schedule property and that he is the tenant and also
admitted that quantum of rent paid in respect of suit
schedule property. No plea was taken in Ex.A-5 by
disputing the plaintiff as landlord of suit schedule
property."
8.1. The first Appellate Court further observed that there is no
fresh lease deed executed in between the parties after expiry of
three years of period i.e., after month of April, 2015 as referred in
Ex.B-1. Also, there is no material evidence put forth by the
defendant to substantiate his plea that the plaintiff intentionally
avoided to receive the rents. Ultimately, the first Appellate Court
confirmed the judgment of the trial Court.
LNA, J
9. Heard Sri Praveen Vyapari, learned counsel for the
appellant, and Sri Vedula Srinivas, learned senior counsel, who
argued on behalf of Smt Vedula Chitralekha, learned counsel on
record for the respondent. Perused the record.
10. A perusal of the record discloses that both the Courts below,
on appreciating the oral and documentary evidence adduced by
both the parties, concurrently held that the relationship of landlord
and tenant between the plaintiff and the defendant is established;
that there is no extension of lease in respect of the suit schedule
property after April, 2015 and that even after receipt of quit notice
from the plaintiff, the defendant failed to vacate and hand over
possession of the suit schedule property to the plaintiff.
11. 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.
12. 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
LNA, J
factual in nature and do not qualify as the substantial questions of
law in terms of Section 100 C.P.C.
13. 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.
14. 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.
15. 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
LNA, J
nature and no question of law much less a substantial question of
law arises for consideration in this Second Appeal.
16. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand
closed.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:01.03.2024
dr
