Andhra Pradesh High Court - Amravati
Durga Govinda Rajulu vs Perla Rajabai on 13 February, 2025
APHC010589132023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
THURSDAY, THE THIRTEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 184/2024
AND
SECOND APPEAL NO: 265/2024
SECOND APPEAL NO: 184/2024
Between:
Durga Govinda Rajulu ...APPELLANT
AND
Perla Rajabai and Others ...RESPONDENT(S)
APHC010589242023 IN THE HIGH COURT OF ANDHRA PRADESH [3397] AT AMARAVATI (Special Original Jurisdiction) THURSDAY, THE THIRTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO SECOND APPEAL NO: 265/2024 Between:
Durga Govinda Rajulu ...APPELLANT
AND
Perla Rajabai ...RESPONDENT
Counsel for the Appellant:
1. T V SRI DEVI
Counsel for the Respondent(S):
1. S LAKSHMINARAYANA REDDY
The Court made the following:
Common Judgment:
S.A.No.184 of 2024 is filed aggrieved against the Judgment and decree dated 09-8-2013 in A.S.No.144 of 2019 on the file of the Judge, Family Court cum III Additional District and Sessions Court, Srikakulam, Srikakulam District, confirming the Judgment and decree dated 16-9-2019 in O.S.No.57 of 2012 on the file of the Additional Senior Civil Judge, Srikakulam; whereas, S.A.No.265 of 2024 is filed aggrieved against the Judgment and decree dated 09-8-2013 in A.S.No.6 of 2020 on the file of the Judge, Family Court cum III Additional District and Sessions Court, Srikakulam, Srikakulam District, confirming the Judgment and decree dated 16-9-2019 in O.S.No.312 of 2013 on the file of the Additional Senior Civil Judge, Srikakulam.
2. The appellant in S.A.No.184 of 2024 is the 2nd defendant, the 1st respondent is plaintiff and the 2nd respondent is 1st defendant in O.S.No.57 of 2012 on the file of the Additional Senior Civil Judge, Srikakulam; whereas, the appellant in S.A.No.265 of 2024 is defendant and the respondent is plaintiff in O.S.No.312 of 2013 on the file of the Additional Senior Civil Judge, Srikakulam.
3. The plaintiff initiated action in O.S.No.57 of 2012 on the file of the Additional Senior Civil Judge, Srikakulam, with a prayer to direct the 2nd defendant to vacate the plaint schedule property and handover the same to her by paying the monthly rent from July, 2012, to pay the arrears of rent of Rs.14,800/- and to pay fair rent by way of damages of Rs.33,000/- per month for his unauthorized occupation from November, 2011 till he vacates the premises together with monthly rent of Rs.7,400/- and for costs of the cost; and the plaintiff also initiated action in O.S.No.312 of 2013 on the file of the Additional Senior Civil Judge, Srikakulam, with a prayer to direct the defendant to vacate the plaint schedule property and handover the same to her by paying the monthly rent from June, 2013, to pay the arrears of rents of Rs.27,300/- for the months of March, 2013 to May, 2013 and for costs of the suit.
4. The trial Court conducted common trial in both the suits in O.S.Nos.57 of 2012 and 312 of 2013 and pronounced a common judgment. Both the second appeals are filed against the common judgment and decrees pronounced by the learned trial Judge, which was confirmed by the learned first appellate Judge. Therefore, a common judgment is being pronounced by this Court in both the second appeals.
5. For the sake of convenience, both parties in these appeals will be referred to as they are arrayed in the original suits.
6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.57 of 2012, is as follows:
It is pleaded that the 1st defendant is husband of the plaintiff and the 2nd defendant is sub-lessee under the 1st defendant and that the plaintiff is absolute owner of the suit schedule property and she let out the same to the 1st defendant for a period of five years commencing from 06-12-2006 to 05-12-2011 under a registered lease deed, dated 06-12-2006 and as per the said lease deed, the 1st defendant can sub-let the suit schedule premises for a period of 4 years and 11 months and accordingly, the 1st defendant sub-let the suit schedule premises to the 2nd defendant and the defendants 1 and 2 executed a registered lease deed for a period of 4 years and 11 months commencing from 08-12-2006 to 07-11-2011 and at present, the 2nd defendant is running business in the suit schedule property even after lapse of the stipulated lease period and the lease period between the plaintiff and 1st defendant lapsed on 05-12-2011 and the plaintiff in bona fide requirement of the premises, got issued a legal notice (quit notice) to the defendants 1 and 2 on 10-11-2011 requesting them to vacate the suit schedule property from 05-12-2011 and handover the same to her and the legal notice was served on the defendants and the 2nd defendant neither chose to vacate the premises nor issued any reply notice, but the 1st defendant sent a copy of the legal notice issued by him to the 2nd defendant through his Advocate, dated 15-11-2011, requesting the 2nd defendant to vacate the premises and handover the same to the 1st defendant to enable him to handover the same to the plaintiff and the 2nd defendant even after lapse of lease period on 07-11-2011, continued in the premises and the lease period in between the 1st defendant and plaintiff was also lapsed on 05-12-2011 and the possession of 2nd defendant is unauthorized occupier and trespasser and the suit schedule property is located in the prime locality of Srikakulam Town abutting the old grand trunk road, but the 2nd defendant with an evil idea to continue in the premises for a meager rent, failed to vacate the premises even after lease period is expired and the 2nd defendant is unauthorizedly continuing in the suit schedule property without any lawful right and the plaintiff is in bona fide need of suit schedule property for starting her business and after issuing legal notice, the 1st defendant nor the 2nd defendant failed to pay the rents and the 2nd defendant even after lapse of lease period, failed to pay the rent to the plaintiff and she filed the present suit.
7. The 2nd defendant filed written statement in O.S.No.57 of 2012 denying the contents of plaint averments and further contended as follows:
It is contended that he was inducted as tenant by the plaintiff in the ground floor of the plaint schedule property in the year 1981 with an agreement to increase the monthly rent from time to time on the existing rent and accordingly he got ground floor premises of the suit schedule property and established a showroom and running business under the name and style M/s Goldage for selling electronic goods and since then, he is running business without any obstruction by paying agreed rent regularly to the plaintiff without any default and also enhancing rents from time to time and that he developed goodwill to his business and also to the building and at that time, he got godown for his stocks somewhere at a place belongs to Garimella people and previously, the plaintiff and 1st defendant, who are the wife and husband, used to run a lodge in the first and second floors where the suit schedule property is situated and the said lodge fell into loss and they closed the said business and insisted the 2nd defendant to shift his stock godown and establish the same in the plaint schedule property to continue his business and also promised him to continue his business in the event of lapse of rent agreement in future. It is further contended that the plaintiff and 1st defendant colluded together and with an evil intention to vacate the premises, got issued a legal notice and filed the present suit with false allegations to cause loss to him and the plaintiff and 1st defendant are sick persons and depending on their children and there is no bona fide requirement for the plaintiff with respect to the suit schedule property and they are not in a position to do business and there is no willful default by him and he invested large amounts for the purpose of his business by securing loans and after receipt of legal notice, he approached and questioned the plaintiff and 1 st defendant by showing the notice and they promised him that they will not proceed further and believing their words, he did not issue any reply and suddenly he cannot vacate the premises by leaving his business and investment and he will suffer loss and he is ready to deposit the monthly rents in court as the 1 st defendant and plaintiff have refused to receive the rents from him and he prayed to dismiss the suit.
8. The 1st defendant remained ex parte.
9. On the basis of above pleadings, the learned Additional Senior Civil Judge, Srikakulam, framed the following issues for trial in O.S.No.57 of 2012:
(1) Whether the plaintiff is entitled for vacating the 2nd defendant from the suit schedule property ?
(2) Whether the plaintiff is entitled for arrears of rent as claimed for ? (3) Whether the plaintiff is entitled for fixation of fair rent by way of damages of Rs.33,000/- per month as claimed in the suit ? and (4) If so, to what relief ?
10. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.312 of 2013, is as follows:
It is pleaded that the plaintiff is absolute owner of the suit schedule property and she let out the same to him for a period of five years commencing from 03-4-2007 to 02-4-2012 and a registered lease deed was executed between them by reciting all the conditions in the lease deed, dated 03-4-2007, which was registered on 07-4-2007 and he was inducted as tenant in the suit schedule property from 03-4-2007 and after expiry of the lease period on 02-4-2012, on his request she allowed him to continue the lease for 12 months i.e. from 03-4-2012 to 02-4-2013 on a monthly rent of Rs.9,100/-
and the oral lease was lapsed on 02-4-2013 and as the plaintiff is in bona fide requirement of the premises for doing her own business, since her sons separated from her and that he was also inducted as tenant in the first and second floors of the suit schedule property as sub-lessee under her husband, who is lessee under her and even after lapse of lease period as he failed to vacate the suit schedule premises, the plaintiff filed O.S.No.57 of 2012 against him for eviction and the same is pending before the court and he willfully not paid the rent for the suit schedule property in O.S.No.57 of 2012 and as the oral lease between him and the plaintiff was lapsed on 02-4-2013 and as she has no interest to continue him as tenant in the suit schedule property and she is in bona fide requirement of the suit schedule property and requested him to vacate the premises and he did not vacate the same and she got issued a quit notice through her Advocate on 28-3-2013 demanding him to vacate the premises and handover the same to her and he received the said notice and got issued a reply dated 07-5-2013 through his Advocate with false and untenable allegations and even after receiving the quit notice, he did not chose to vacate the premises and the quit notice issued by her was served on him and he is still continuing the business in the premises and he is also not paying the rents from March, 2013 after receiving the legal notice and she filed the present suit for eviction against him.
11. The defendant filed written statement in O.S.No.312 of 2013 denying the contents of plaint averments and further contended as follows:
It is contended that he was engaged by the plaintiff in the ground floor of plaint schedule property in the year 1981, with an agreement to increase monthly rent from time to time on the existing rent and accordingly, he got ground floor premises of the suit schedule property and established a showroom and running business under the name and style M/s Goldage for selling electronic goods and since then, he is running business without any obstruction by paying agreed rent regularly to her without any default and also enhancing rents from time to time and that he developed goodwill to his business and also to the building and at that time, he got godown for his stocks somewhere at a place belongs to the Garimella people and previously, the plaintiff and her husband used to run a lodge in the first and second floors where the suit schedule property is situated and the said lodge fell into loss and they closed the said business and insisted the defendant to shift his stock godown and establish the same in the plaint schedule property to continue his business and also promised him to continue his business in the event of lapse of rent agreement in future and believing their words, the defendant vacated his godown from the building of Garimella people and shifted the same to the suit schedule property and taken the suit schedule property in addition to the second floor on monthly rent with an agreement for increasing rent from time to time and he is continuing his business without any default by paying the agreed rent from time to time and seeing the development of the defendant, the plaintiff and her husband colluded together and with an evil intention to vacate the premises, got issued a legal notice and filed the present suit with false allegations to cause loss to him and he prayed to dismiss the suit.
12. On the basis of above pleadings, the learned Additional Senior Civil Judge, Srikakulam, framed the following issues for trial in O.S.No.312 of 2013:
(1) Whether the plaintiff is entitled for vacating the 2nd defendant from the suit schedule property ?
(2) Whether the plaintiff is entitled for arrears of rent as claimed for ? (3) Whether the plaintiff is entitled for fixation of fair rent by way of damages of Rs.33,000/- per month as claimed in the suit ? and (4) If so, to what relief ?
13. During the course of common trial in the trial Court, on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-13 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-3 were marked. Ex.X-1 was also marked.
14. The learned Additional Senior Civil Judge, Srikakulam, after conclusion of common trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit in O.S.No.57 of 2012 with costs, directing the 2nd defendant to vacate the plaint schedule property and handover the vacant possession of the same to the plaintiff within 3 months, by paying the monthly rent of Rs.7,400/- from July, 2012 and to pay the arrears of rent of Rs.14,800/- to the plaintiff and also to pay fair rent byway of damages at Rs.33,000/- per month for his unauthorized occupation from November, 2011 till he vacates the premises together with monthly rent of Rs.7,400/- to the plaintiff; and also decreed the suit in O.S.No.312 of 2013 with costs, directing the defendant to vacate the plaint schedule property and handover the vacant possession of the same to the plaintiff within 3 months by paying the monthly rent of Rs.9,100/- from June, 2013 and to pay the arrears of rent of Rs.27,300/- for the months of March, 2013 to May, 2013 to the plaintiff. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suits in A.S.Nos.144 of 2019 and 6 of 2020, respectively, before the Family Court cum III Additional District and Sessions Court, Srikakulam, wherein, the following points came up for consideration.
In A.S.No.144 of 2019:
(1) Whether the plaintiff is entitled for eviction of the suit schedule property on the ground of bona fide requirement ?
(2) Whether the plaintiff is entitled for arrears of rent from the appellant as prayed for ?
(3) Whether the decree and judgment dated 16-9-2019 in O.S.No.57 of 2012 on the file of Additional Senior Civil Judge, Srikakulam, requires any interference of this court ? and (4) To what relief ?
In A.S.No.6 of 2020:
(1) Whether the defendant committed willful default in payment of monthly rent and plaintiff is entitled for eviction of the suit schedule property on the ground of bona fide requirement ?
(2) Whether the plaintiff is entitled for arrears of rent from the appellant as prayed for ?
(3) Whether the decree and judgment dated 16-9-2019 in O.S.No.312 of 2013 on the file of Additional Senior Civil Judge, Srikakulam, requires any interference of this court ? and (4) To what relief ?
15. The learned Judge, Family Court cum III Additional District and Sessions Judge, Srikakulam, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant/appellant and in favour of the plaintiff/respondent and dismissed both the appeals filed by the defendant and the first appellate Judge came to conclusion that the plaintiff in O.S.No.57 of 2012 is not entitled for damages. Felt aggrieved of the same, the unsuccessful 2nd defendant in O.S.No.57 of 2012 and defendant in O.S.No.312 of 2013 filed both the present second appeals before this Court.
16. After institution of the second appeals by the defendant in the suits, this Court ordered notice to the respondent/plaintiff before admission and the said notice is served on her. Heard Smt. T.V. Sridevi, learned counsel for the appellant/defendant and Sri S. Lakshmi Narayana Reddy, learned counsel for the respondent/plaintiff.
17. The learned counsel for appellant would contend that the judgments and decrees passed by both the Courts below are illegal, contrary to law and facts, weight of evidence and probabilities of the case. She would further contend that both the Courts below ought to have seen that granting a decree for eviction is unknown to law, when a decree for rents is granted by the courts after adjudicating that the lease has been terminated due to efflux of time and by adjudicating that the lease has been terminated by issuing quit notice by the plaintiff and she would further contend that both the second appeals may be allowed by setting aside the findings arrived at by both the Courts below.
18. Per contra, the learned counsel for respondent would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed both the suits and the said finding was confirmed by the learned first appellate Judge and there is no need to interfere with the findings arrived by both the Courts below and both the second appeals may be dismissed.
19. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of the Code of Civil Procedure could be admitted only when the appellant satisfies the Court that substantial question of law between the parties arise in the case. A proper test for determining whether a question of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In a case of Boodireddy Chandraiah v. Arigela Laxmi1, the Apex Court held that 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 viz., the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising a substantial question of law.
20. The plaintiff having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for her to meet the above principles and satisfy the Court whether there exists any substantial question of law.
21. Both these second appeals are filed against the concurrent findings arrived by both the Courts below, therefore, the grounds urged in the second appeals are to be scrutinized to find out whether the appellant has shown any substantial question of law. The contention of the appellant is that the common judgment and decrees of the trial Court as well as the judgments and decrees of the first appellate Court are contrary to law and that the second appeals may be allowed by setting aside the judgments and decrees passed by both the Courts below i.e. the trial Court and the first appellate Court.
22. The plaintiff approached the trial Court seeking the relief of eviction of the tenant i.e. D.W.1, the defendant in O.S.No.312 of 2013 and the 2nd defendant in O.S.No.57 of 2012. The relationship of landlady and tenant is not at all disputed by both the parties. The subject matter of the properties in S.A.No.184 of 2024 is related to the first and second floors of building.
1(2007) 8 SCC 155 The subject matter of the property in S.A.No.265 of 2024 is in respect of ground floor premises of the suit schedule property within the same premises. The undisputed facts are that the plaintiff is the owner of the suit schedule premises in respect of the subject matters of the properties of both the appeals and the entire plaint schedule property is situated in one building. As stated supra, S.A.No.184 of 2024 relates to the first and second floors of the plaint schedule building and S.A.No.265 of 2024 relates to the ground floor of the property of the same building. It is an undisputed fact that the lease period was completed. The plaintiff issued quit notices under Exs.A-2 and A-7, respectively, in both the suits.
23. It was contended by the learned counsel for plaintiff that the plaintiff herein issued a quit notice under Section 106 of the Transfer of Property Act and after receipt of quit notice and after expiry of lease period, the tenant has not vacated the schedule property. The grounds urged for eviction by the plaintiff is that the defendant/tenant committed willful default of payment of rent and she has a bona fide requirement of the suit schedule property for her personal business. It is not in dispute that the lease period under Ex.A-6 in respect of first and second floors in connection with S.A.No.184 of 2024 will expire on 05-12-2011. It is also an undisputed fact that the lease under Ex.A- 1 in respect of ground floor premises will expire by 02-4-2012.
24. As seen from own admissions of the tenant i.e. D.W.1, after expiry of lease under Ex.A-1, at request of the appellant, the plaintiff permitted him to continue as a tenant for a further period of one year on a monthly rent of Rs.9,100/-. It clearly goes to show that the tenant was continued in the premises till 05-12-2012 permitted by the plaintiff on a monthly rent of Rs.9,100/-. As seen from the material on record, the 1st defendant, who is original tenant in O.S.No.57 of 2012, remained set ex parte. Therefore, the 2nd defendant being a sub-lessee in O.S.No.57 of 2012, cannot claim more right than that of the 1st defendant. The 1st defendant/original tenant in O.S.No.57 of 2012 is not at all disputed about termination of the tenancy. The 2nd defendant being a sub-lessee, cannot claim any individual right. The fact remains that the tenancy of D.W.1 in both the suits under Exs.A-1 and A-6 lease agreements, which remain expired in the year 2012. It is also made clear that a quit notice under Ex.A-2 was issued under Section 106 of the Transfer of Property Act on 28-3-2013 in O.S.No.312 of 2013 and a quit notice under Ex.A-7 was issued on 10-11-2011 in O.S.No.57 of 2012 by giving 15 days‟ time to the tenant to vacate the premises. Admittedly, in both the suits, lease between the plaintiff and defendant will expire on 02-4-2012 and 05-12-2011, respectively.
25. It is an undisputed fact that after receipt of quit notice, the tenant in both the suits is continuing in the premises of entire building viz., ground floor, first floor and second floor of the total building property. The tenant i.e. D.W.1 admits in his evidence in cross-examination that he was the tenant under the plaintiff for the suit schedule properties in O.S.Nos.57 of 2012 and 312 of 2013 and after expiry of the lease period under Exs.A-1 and A-6, there was no another lease agreement between him and the plaintiff and that the plaintiff permitted him as tenant for one year with respect to the schedule property in O.S.No.57 of 2012 after the lease period. He also admitted that the plaintiff is the original owner of the entire building, which is the subject matter of the suits in O.S.Nos.57 of 2012 and 312 of 2013. He also admitted that the 1st defendant in O.S.No.57 of 2012 leased out the first and second floors of the building for a period of five years as per the lease deed obtained by him from the plaintiff with a condition to sub-let the property for a period of 4 years and 11 months and accordingly, he entered into a registered lease deed with 1st defendant in O.S.No.57 of 2012 for a period of 4 years and 11 months and that after expiry of the lease period in O.S.No.57 of 2012, the plaintiff got issued a legal notice to him and the 1st defendant to vacate the first and second floors and the 1st defendant got issued a legal notice to him to vacate the premises. He also admitted that the plaintiff got issued a quit notice to him to vacate the ground floor of the building, which is the subject matter in O.S.No.312 of 2013 and that he did not vacate the ground floor even after receiving the quit notice. The aforesaid admissions of tenant clearly goes to show that after receiving quit notices soon after the expiry of lease period, he continued in the suit schedule premises.
26. Section 116 of the Transfer of Property Act defines as follows:
"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."
27. After receipt of quit notices, D.W.1 did not pay any rent to the plaintiff and the plaintiff also did not receive any rent from the tenant. As per Section 106 of the Transfer of Property Act, lease between the plaintiff and D.W.1 was terminated after 15 days from the date of receipt of notice as mentioned in quit notices. It is an undisputed fact that D.W.1 received quit notices under Section 106 of the Transfer of Property Act said to have been issued by the plaintiff. The ownership of the plaintiff is also not at all in dispute by the appellant. The relationship of landlady and tenant in between both the parties is also not in dispute. The fact remains that D.W.1 i.e., the tenant is continuing in the suit schedule premises after termination of the lease. Therefore, the possession of the tenant i.e. D.W.1 is an unauthorized possession after 15 days period as specified in quit notices under Section 106 of the Transfer of Property Act under Exs.A-2 and A-7 and there is no relationship of landlady and tenant in between the plaintiff and D.W.1. Therefore, D.W.1/tenant i.e., the appellant is liable to be evicted from the suit schedule premises in both the suits.
28. The learned counsel for appellant would contend that the plaintiff received rents during the pendency of the suit and appeal by filing cheque petitions and it amounts to waiver of quit notice and relied on a decision of single Judge of Karnataka High Court in the case of M/s. Auto World, Bangalore v. Smt. K.V. Sathyavathi2, wherein it is held as follows:
"36. ... ... ..., the appellant continued to remit rents by way of demand drafts with covering letters, specifically indicating that the same was being tendered as rent. The receipt and encashment of which is duly evidenced by documents exhibited. Though such deposits and receipt is not in dispute, over the years, during the pendency of the suit and the same having been received without demur and unconditionally, the specious argument that it was received only as damages for use and occupation, even if could be established would not enable the respondent to contend that there is no waiver of the quit notice. ... ... ..."
29. It was held by the Apex Court in the case of K.M. Manjunath v. Erappa. G dead through LRs.3, as follows:
"11. ... ... ... the High Court found that the lease could be taken as lease for a period of eleven months. In view of the evidence thus obtained and taking into account the decision in Shanti Prasad Devi‟s case (supra) the High Court held that mere acceptance of the rent by the landlord after the expiry of the period of lease would not amount to waiver of the termination of lease. Relying on a Division Bench decision of the High Court in M.C. Mohammed Vs. Smt. Gowramma [AIR) 2007 KAR 46] rendered relying on the decision in Pooran Chand Vs. Motilal & Ors. [AIR 1964 SC 461], held that on expiry of the term fixed under the deed the tenant would not be entitled to statutory notice under Section 106 of the TP Act. It was found that on determination of the lease by efflux of time no further termination of the tenancy by issuing a statutory notice to bring termination of a lease already terminated is necessary. Taking into account the evidence on record the said conclusions the consequential reversal of the judgment and decree of the Civil Court cannot be held as perverse or illegal warranting interference. As the judgment and decree of the Civil Court was not „according to law‟, the High Court was certainly within its rights to set aside the decree in exercise of its revisional jurisdiction. ... ... ..."2
AIR 2015 Kar 128 3 2022 LiveLaw (SC) 561
30. In the case of Saleh Bros. v. K. Rajendran4, the Apex Court held that the receipt of rent may only create a presumption and cannot by its own force amount to a waiver.
31. It is well settled that on expiry of period of lease, the erstwhile lessee continued in possession because of law of the land viz., that the original landlady cannot physically thrown out such an erstwhile tenant by force. He must get his claim for possession adjudicated as per the relevant provisions of law. The status of erstwhile tenant to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession.
32. Here, after receipt of quit notices under Section 106 of the Transfer of Property Act, the appellant failed to vacate the plaint schedule premises after 15 days‟ period as specified in quit notices, therefore, the plaintiff is constrained to file both the suits for eviction of the tenant. As stated supra, the relationship of landlady and tenant is not at all in dispute. It is admitted by the appellant that he is tenant of the schedule premises and the plaintiff is the owner of the schedule premises.
33. In the case of A.G. Chandrasekhar v. Ramagiri Mahalaxmi5, the composite High Court of Andhra Pradesh at Hyderabad held as follows:
"15. From a consideration of various decisions of the Supreme Court and this court as well as provisions of law incorporated in Sections 106, 107, 110 and 116 of the Transfer of Property Act, the following principles of law emerge. In cases where a lease is to be made only by a registered instrument as envisaged under Section 107 of the Transfer of Property Act, if the lease document is an unregistered document, its terms cannot be looked into to ascertain the period of lease agreed upon. In such cases, de hors the contents of the unregistered lease document from the material placed before the Court, the period of lease agreed upon between the parties can be ascertained. If the period of lease is ascertained from the evidence on 4 AIR 1970 Mad 165 5 2002 (5) ALD 573 record, de hors the contents of the unregistered lease document, lease of immovable property becomes determined by efflux of time limited thereby as per the agreement between the lessor and lessee. In such a case after the lease expired by efflux of time, without issuing any quit notice under Section 106 of the Transfer of Property Act, the lessor is entitled to file a suit to evict the lessee from the possession of the demised immovable property. If the period of lease de hors the contents of unregistered lease document cannot be ascertained, the lessor without issuing a prior quit notice under Section 106 of the Transfer of Property Act cannot maintain a suit for eviction of the lessee. Where a lease is evidenced by an unregistered document, even if the lease is for agricultural or manufacturing purposes, the lease can be validly determined by issuing a quit notice terminating the lease by fifteen days notice expiring with the end of the month of the tenancy. In a situation where the lease document is an unregistered lease document, even after the period of lease agreed upon between the parties is ascertained de hors the contents of the unregistered lease document, the suit for eviction of the lessee after the lease gets terminated by efflux of time, is not maintainable if the lessee is a tenant holding over the demised premises after the expiry of the period of lease. However, in such cases the lessee has to take a definite plea in his written statement in the suit that he is a tenant holding over and adduce sufficient evidence to prove that he is a tenant holding over the demised premises after the expiry of the lease period. In the absence of such a plea followed by sufficient evidence, he cannot resist a suit for eviction without issuing a prior proper and valid quit notice under Section 106 of the Transfer of Property Act."
In the case on hand, no consent was given by the landlady for continuation of tenancy after expiry of contractual tenancy. Admittedly, the rent is not received by the landlady after expiry of lease. The contention of landlady/plaintiff is that after termination of the tenancy, the appellant did not pay any rent and that he committed default of payment of rent and the schedule premises is required for her personal use. The said finding was arrived at by both the Courts below. As stated supra, the rent is not received by the landlady after expiry of lease, therefore, the question of continuing the tenancy by holding over or waiver does not arise. It was contended by the learned counsel for appellant that the tenant deposited rents during the pendency of the suit and appeal and the landlady received the rents by filing cheque petitions from the Courts below. As stated supra, mere acceptance of rent by the landlady after expiry of period of lease would not amount to waiver of the termination of the lease.
34. As per the law laid down by the Apex Court in a catena of decisions, the jurisdiction of the High Court to entertain a second appeal under Section 100 of C.P.C., after 1976 amendment, is confined only when the second appeal involves a substantial question of law. In the case on hand, on appreciation of the entire evidence on record, the learned trial Judge decreed the suit and on re-appreciation of the entire evidence on record, the learned first appellate Judge confirmed the common judgment passed by the trial Court, therefore, both the Courts below gave concurrent finding and the defendant/appellant filed both the second appeals before this Court. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under Section 100 of Code of Civil Procedure. As observed and held by the Apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar6, in a second appeal under Section 100 of CPC, the High Court cannot substitute its own opinion for that of the first appellate Court, unless it finds that the conclusions drawn by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; or
(ii) Contrary to the law as pronounced by the Supreme Court; or
(iii) Based on inadmissible evidence or no evidence.
In the case on hand, admittedly, the conclusions drawn by both the Courts below are not contrary to the mandatory provisions of law applicable or not contrary to the law as pronounced by the Apex Court or not based on inadmissible evidence or no evidence.
35. In the case on hand, both the Courts below came to right conclusion and ordered eviction of the appellant in the plaint schedule property and in the 6 (1999) 3 SCC 722 appeal in A.S.No.144 of 2019 (connected with O.S.No.57 of 2012), the first appellate Court rightly held that the plaintiff is not entitled to claim damages and the plaintiff is entitled to the relief of eviction of the tenant from the plaint schedule property and the first appellate Court also rightly granted arrears of rent of Rs.7,400/- from May, 2012 till the date of vacation of the premises and the learned first appellate Judge rightly negatived the damages awarded by the learned trial Judge. The plaintiff in O.S.No.312 of 2013 is entitled to arrears of rent of Rs.9,100/- as ordered by the first appellate Court in A.S.No.6 of 2020.
36. In view of my aforesaid findings, I do not find any illegality in the said finding given by the learned first appellate Judge in both the appeals and the learned appellate Judge in A.S.No.144 of 2019 (connected with O.S.No.57 of 2012 on the file of Additional Senior Civil Judge‟s Court, Srikakulam) rightly held that the plaintiff is not entitled for damages.
37. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the plaintiff and against the defendant do not brook interference and that both the Courts below are justified in decreeing both the suits of the plaintiff. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of Code of Civil Procedure. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law.
38. Viewed thus, this Court finds that none of the questions raised are substantial questions and there is no subsistence in the questions raised and that therefore, both the second appeals are devoid of merits and are liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki7. In the case on hand, as stated supra, this Court finds after careful examination of the pleadings, evidence and contentions that no substantial question of law is involved, both these second appeals are liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of Civil Procedure Code.
39. In the result, both the second appeals are dismissed at the stage of admission, confirming the judgments and decrees of both the Courts below. The appellant is directed to vacate the plaint schedule premises within 4 (four) months from the date of this judgment, failing which the respondent/plaintiff is at liberty to initiate necessary proceedings as per law. Pending applications, if any, shall stand closed. Each party do bear their own costs in the second appeals.
VENUTHURUMALLI GOPALA KRISHNA RAO,J 7 AIR 2006 SC 1975