Andhra Pradesh High Court - Amravati
Kethireddy Gopala Reddy, vs Paluru Siva Prasad, on 21 September, 2022
THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.400 of 2022
JUDGMENT:
1st Defendant in suit filed the above second appeal, aggrieved by the judgment and decree dated 30.06.2022 in A.S.No.87 of 2017 on the file of Principal District Judge, Vizianagaram, confirming the judgment and decree dated 23.10.2017 in O.S.No.81 of 2010 on the file of Senior Civil Judge, Vizianagaram.
2. Parties to this judgment are referred to as they are arrayed in the plaint.
3. Plaintiff filed suit O.S.No.81 of 2010 seeking ejectment of 1st defendant from the plaint schedule property; to deliver vacant possession to the plaintiff and defendants 2 to 5; to direct the 1st defendant to pay arrears of Rs.82,128/- from December, 2008 to December, 2009 with subsequent interest and also direct the 1st defendant to pay future damages @ Rs.15,000/-per month from the date of suit till the date of vacating the property.
4. In the plaint, it was contended interalia that plaintiff and defendants 2 to 5 are the family members and the schedule 2 property is their property; that 1st defendant approached the plaintiff, defendants 2, 3 and husband of 4th defendant; that in May, 1994, plaintiff, defendants 2, 3 and husband of 4th defendant accepted to lease out the schedule property to 1st defendant to run hotel business; that they entered into a lease agreement dated 31.05.1994 for a period of five years; that 1st defendant started hotel business in the name and style of Hotel Swapna; that 1st defendant approached plaintiff, defendants 2, 3 and husband of 4th defendant for extension of lease for a further period of five years and accordingly, a fresh lease was executed; that 1st defendant agreed to pay Rs.5,500/- per month towards rent; that 1st defendant committed default in payment of shop rent to the plaintiff from December, 2008; that plaintiff needs the schedule property for personal occupation to run business; that the plaintiff got issued a legal notice dated 21.04.2009 demanding 1st defendant to vacate and handover possession by 09.06.2009; that 1st defendant received notice and issued reply with false allegations; that defendants 2 to 5, being co-owners are not cooperating and hence, they were shown as defendants and thus, filed the suit.
5. Defendants 1, 3 and 5 filed separate written statements and 2nd defendant adopted the written statement filed by 3rd 3 defendant. Defendants 2 and 3 though denied the averments in the plaint, in a way supported the case of plaintiff. 5th Defendant also reported no objection to decree the suit.
6. 1st Defendant filed written statement and contended interalia that for the notice issued by the plaintiff, he got issued a suitable reply notice; that originally schedule property belonged to Paluri Satyanarayana, father of plaintiff, defendants 2, 3 and father-in-law of 4th defendant; that during his lifetime, he constructed slabbed structure and the skeleton was leased out to Chandana Mohanarao of Chandra Brothers, Viskhapatna for a period of 30 years, but the said Chandana Mohanarao did not open the shop room in the said premises; that 1st defendant interfered into this affair and at his request, property was leased out to him; that plaintiff, defendants 2, 3 and husband of 4th defendant took an advance of Rs.1,00,000/- each; that they also promised to repay the amount invested by 1st defendant; that 1st defendant has been paying rents regularly; that even after issuance of notice, plaintiff collected rents from 1st defendant; that one of the plaintiff's brother Paluri Satyanarayana filed suit O.S.No.41 of1986 on the file of Senior Civil Judge, Vizianagaram for partition and he also filed E.P.No.89 of 2004; that plaintiff 4 suppressed the said facts; that A.S.No.75 of 1997 is still pending before and eventually prayed to dismiss the suit.
7. Basing on the pleadings, the trial Court framed the following issues:
1) Whether the 1st defendant became trespasser and doing hotel business unauthorizedly in the plaint schedule property?
2) Whether the plaintiff is entitled to vacate the 1st defendant from the plaint schedule property and for vacant possession, as prayed for?
3) Whether the plaintiff is entitled for arrears of rent as prayed for?
4) Whether the plaintiff is entitled for future damages as prayed for?
5) To what relief?
8. On behalf of plaintiff, the plaintiff examined himself as P.W.1 and got examined P.W.2. Exs.A-1 to A-4 were marked. On behalf of 1st defendant, he examined himself as D.W.1 and got marked Exs.B-1 to B-13.
9. Trial Court on consideration of both oral and documentary evidence decreed the suit vide judgment and decree dated 23.10.2017. Trial Court directed 1st defendant to vacate the schedule premises within four months. Also granted 5 decree for Rs.66,240/- with interest @ 6% p.a. from the date of suit till the date of realization, however, negatived the claim of future damages @ Rs.15,000/- per month.
10. Aggrieved by the said judgment and decree, 1st defendant filed appeal A.S.No.87 of 2017. Lower appellate Court being final fact finding Court on consideration of oral and documentary evidence dismissed the appeal vide judgment and decree dated 30.06.2002 and granted four months time to vacate the schedule premises and handover vacant possession of the same to the plaintiff and defendants 2 to 5. Assailing the said judgment and decree, the present second appeal is filed.
11. Heard Sri Vedula Venkata Ramana, learned senior counsel appearing on behalf of appellant and Sri Saripalli Subrahmanyam, learned counsel for 1st respondent/caveator.
12. Learned senior counsel for appellant would contend that notice issued under Ex.A-2 is not in consonance with Section 106 of Transfer of Property Act, 1882 (for short "T.P.Act") and hence, the judgments of the Courts below are liable to be set aside. He would further submit that original lease agreement is unregistered lease deed and hence, it cannot be looked into. He would also submit that ground of default in payment of rents 6 and bonafide personal requirement cannot constitute legal basis for passing decree of eviction under the T.P.Act.
13. Learned counsel for the 1st respondent-caveator supported the judgments of the Courts below.
14. Basing on the pleading and contention, the following substantial questions of law arise for consideration:
1) Whether notice Ex.A-2 is in consonance with Section 106 of T.P.Act and hence, constitutes a valid notice?
2) Whether Ex.A-1 unregistered lease deed can be looked into, since the lease is for five years in view of bar under Section 17 in The Registration Act, 1908?
15. Undisputed facts are that suit schedule property is the ancestral property of plaintiff, defendant 2, 3 and husband of 4th defendant. 1st defendant was inducted a tenant pursuant to Ex.A-1 lease deed.
16. According to plaintiff, 1st defendant deposited Rs.1,00,000/- when he was inducted into schedule premises as tenant. However, 1st defendant contended that he paid Rs.1,00,000/- each to the plaintiff, defendant 2, 3 and husband 7 of 4th defendant. According to the plaintiff, initially lease is for five years from 31.05.1994 and the lease was extended by five more years from 09.06.2004 and the rent payable is Rs.5,520/-. By issuing Ex.A-2 legal notice on 20.04.2009, plaintiff indicated in the notice that lease expires by 09.06.2009 and from 10.06.2009, 1st defendant will become trespasser. Since, according to plaintiff, the tenancy came to an end by 09.06.2009 by virtue of Ex.A-2 notice, claimed damages @ Rs.15,000/-. 1st defendant issued reply notice under Ex.A-4 and pleaded that lease agreement was executed for ten years by promising to renew the same for 30 years and also pleaded about payment of advance amount. 1st defendant also pleaded that he is not a trespasser from 10.06.2009 and the lease shall continue for 30 years from the date of his possession i.e. 31.05.1994.
17. Lease is not a mere contract but envisages and transfers an interest in the demised property by creating a right in favour of lessee in rem. A lessee of a property has a right to the possession and enjoyment of the demised premises to the exclusion of the lessor. Duration of certain leases in absence of written contract or local usage is being dealt with under Section 106 of T.P.Act.
8
18. Section 111 of T.P.Act deals with determination of lease, which reads thus:
"A lease of immoveable property determines-
(a) by efflux of the time limited thereby:
...
...
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
19. Section 113 of T.P.Act deals with waiver notice to quit. According to the plaintiff, 1st defendant was inducted into schedule property as tenant by the plaintiff, defendants 2, 3 and husband of 4th defendant on 31.05.1994 for a period of five years. According to 1st defendant, father of plaintiff, plaintiff, defendants 2, 3 and husband of 4th defendant executed an agreement of lease for a period of ten years and also promised to renew the lease for a period of 30 years by enhancing the rent. 1st Defendant also pleaded that agreements of lease dated 31.05.1994 and 09.06.2004. A perusal of the plaint would indicate that original lease agreement dated 09.06.2004 is in the custody of 1st defendant, however, original lease deed dated 31.05.1994 was filed along with plaint and marked as Ex.A-1.
20. As per Ex.A-1, initial period of lease is for five years and the same was extended for five more years and thus, lease came 9 to end by 09.06.2009. By issuing notice dated 20.04.2009 under Ex.A-2, plaintiff made it clear that lease expires by 09.06.2009 and there is no intention to the plaintiff to extend the lease. Thus, the plaintiff determined the lease and directed 1st defendant to vacate the premises. The recitals in Ex.A-2 notice are extracted below:
"Hence you should surrender vacant possession by 09.06.2009 to my client without fail. Since 10.06.2009 you became a trespasser, and the tenancy in between you and my client seizes by 10.06.2009, if you fails to vacate and deliver vacant possession to my client by10.06.2009, you are liable to pay Rs.15,000/- per month towards damages for use and occupation.
Therefore, you are hereby informed and called upon that the lease period came to an end by 09.06.2009, and you should vacate and deliver vacant premises to my client by 10.06.2009 without fail, and also to pay arrears of rent from December, 2008 to till today".
21. A perusal of the above recitals in Ex.A-2 notice would indicate that landlord determined the lease and is not intended to extend the lease further. In the absence of contract or local law or usage to the contract, lease of an immovable property shall be deemed to be lease from month to month terminable on the part of either lessor or lessee by 15 days notice. Ex.A-1 is original lease agreement dated 31.05.1994 and both plaintiff and 1st defendant admitted about execution of lease agreement dated 31.05.1994. Learned senior counsel for the appellant would contend that since Ex.A-1 is not registered document, 10 Court cannot look into contents of Ex.A-1, in view of bar under Section 17 of the Registration Act. In the absence of Ex.A-1, since there is no contract as contemplated under Section 106 of the T.P.Act, lease between the plaintiff and 1st defendant should be treated as lease of immovable property from month to month. If the lease is treated, in this case on hand, is one under month to month, notice issued under Ex.A-2 is a valid notice directing the 1st defendant to vacate the premises by 10.06.2009. Notice was issued under Ex A-2. Thus, the notice issued under Ex A-2 is in accordance with Sec 106 TP Act and plaintiff validly determined the lease. Once the lease was determined, tenant will not be allowed to squat on the property. Even under Sec 108 (q) the lessee on the determination of lease bound the put the lessor into possession of the property.
22. Trial Court considered the effect of notice under Section 106 of the T.P.Act and decreed the suit eventually and also directed the 1st defendant to pay Rs.66,240/- with interest @6% p.a. Lower appellate Court, being final fact finding Court confirmed the said finding.
23. The Courts below also considered filing of suit by one of the co-owners by placing reliance in Shankara Coop. Housing 11 Society Ltd. Vs. M.Prabhakar and Ors.1, wherein the Hon'ble Apex Court held that when the other co-owners do not dispute the plaintiff, the plaintiff has a definite right to seek eviction, on any one of the grounds viz., personal occupation or subsequent default or willful default. Therefore, the plaintiff has got absolute right, title and interest in every part and parcel of joint property or coparcenary under the Hindu Law by all coparceners and the 1st defendant has no right to close the doors to the plaintiff seeking eviction on that count.
24. Whether the appellant can be claim status of tenant holding over?
25. 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.
1 AIR 2011 SC 2161 12
26. A distinction should be drawn when the tenant is continuing in possession after determining the lease without the consent of landlord and the tenant doing so, with the consent of landlord. If a person is continuing in the possession of premises without the consent of landlord, he will be tenant at sufferance and with the consent of landlord, he is tenant holding over or tenant at Will.
27. The Hon'ble Apex Court in Kewal Chand Mimani (d) by Lrs. and Ors. Vs. Respondent: S.K. Sen and Ors.2 held that there is a subtle difference between a tenant holding over and a tenant-at-sufferance. Holding over stands equivalent to the retention of possession after determination of lease, but with the consent of the landlord, whereas, on similar circumstance if the possession is without the consent of the landlord then the same stands out to be a tenant-at-sufferance.
28. The High Court of Karnataka in M/s Sudarshan Trading Co. Ltd. Vs. L.D'Sauza3, pointed out that:
"Tenancy by holding-over is a creature of bilateral, consensual act and does not come into existence by a mere unilateral intendment or declaration of one of the parties. In the absence of any evidence that the plaintiff or her husband have agreed to receive the rent after the expiry of the lease on 30-11-1984, the fact that the defendant had 2 AIR 2001 SC 2569 3 AIR1984 Kant 214 = MANU/KA/0206/1984 13 credited some amounts to the plaintiff's bank account unilaterally does not create a tenancy by holding-over.
29. In the case on hand, the Courts below evaluated the evidence on record and came to conclusion that no evidence was let in by the defendant regarding payment of monthly rents. Hence, the contention of appellant/tenant that he is tenant holding over falls to ground.
30. The Hon'ble Apex Court dealt with scope of Section 100 CPC in Hero Vinoth Vs. Seshammal4 and held thus:
"19. 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, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
It was furthermore held:
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the 4 AIR 2009 SC 1481 14 rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case.
An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).
24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-
(i) ...
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."
31. In the light of the law laid down by the Hon'ble Apex Court on the scope of interference by the High Court in second appeal, this Court while exercising jurisdiction under Section 100 of CPC has to confine to the substantial question of law 15 involved in the appeal. This Court cannot re-appreciate the evidence and interfere with the concurrent findings of the Court below where the Courts below have exercised the discretion judicially. Further the existence of substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substitute its own opinion unless the findings of the Court are manifestly perverse and contrary to the evidence on record.
32. The findings of fact recorded by the Courts below are neither perverse nor misreading of document nor non- consideration of evidence on record. Thus, this Court is of view of that no questions of law, much less substantial questions of law involved in the above appeal warranting interference under Section 100 of CPC. Hence, the appeal is liable to be dismissed, however, without costs.
33. Accordingly, the second appeal is dismissed at admission stage. No order as to costs.
34. After judgment was pronounced, learned counsel for the appellant sought time to vacate the premises it being a commercial premises. Since the appellant has been running 16 hotel business as per the pleadings, he shall vacate the premises by the end of 31.12.2022.
Appellant shall file an undertaking affidavit before the trial Court regarding vacating the schedule premises by 31.12.2022 within three (3) weeks from today. If such affidavit is not filed, it is open to the decree holder to execute the decree.
Appellant shall also pay amount for use and occupation of the schedule premises without fail by 5th of every succeeding month and for December, 2022 by 25.12.2022.
As a sequel, all the pending miscellaneous applications shall stand closed.
________________________________ JUSTICE SUBBA REDDY SATTI 21st September, 2022 PVD