Andhra Pradesh High Court - Amravati
Uppena Madhava Reddy vs Parise Sri Rama Mohana Rao on 4 October, 2024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
FRIDAY ,THE FOURTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 356/2023
Between:
1. UPPENA MADHAVA REDDY, S/O. JAMALA REDDY, HINDU, AGED
ABOUT 70 YEARS, CULTIVATION, R/O. RAMACHANDRAPURAM,
A.KONDURU MANDAL
...APPELLANT
AND
1. PARISE SRI RAMA MOHANA RAO, (DIED)
2. PARISE SUVARCHALA DEVI, W/O. (LATE) SREE RAMA MOHANA
RAO, HINDU, AGED ABOUT 60 YEARS, HOUSEWIFE, R/O.
RAMACHANDRAPURAM, A.KONDURU MANDAL.
3. GURRAM KALYANI, W/O. SRINIVASA RAO, HINDU, AGED ABOUT
39 YEARS, HOUSEWIFE, R/O. RAVINUTHALA, BANAKALLU
MANDAL, KHAMMAM DISTRICT, TELANGANA STATE.
4. PARISE VENKATA KOTESWARA RAO, S/O. SREE RAMA MOHANA
RAO, HINDU, AGED ABOUT 36 YEARS, AGRICULTURIST, R/O.
RAMACHANDRAPURAM, A.KONDURU MANDAL.
5. GADDALA KAVITHA, W/O. RAJU, HINDU, AGED ABOUT 33 YEARS,
HOUSEWIFE, R/O. KOTHAGUDEM TOWN, KOTHAGUDEM-
BADRACHALAM DISTRICT, TELANGANA STATE
6. PARISE ANIL KUMAR, S/O. (LATE) SREE RAMA MOHANA RAO,
HINDU, AGED ABOUT 31 YEARS, EMPLOYEE, R/O.
RAMACHANDRAPURAM, A.KONDURU MANDAL
...RESPONDENT(S):
Appeal under section 100 of CPC against orders pleased to Set-aside
the Judgement and Decree dated 21.03.2023 made in A.S. No. 22 of 2015 on
the file of XV Additional District Judge, Krishna District at Nuzuvid, reversing
the Judgment and Decree dated 17.03.2015 made in O.S. No. 172 of 2007 on
the file of the Principal Junior Civil Judge At Tiruvur, Krishna District, in the
interest of justice and equity.
IA NO: 1 OF 2023
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
condone the delay of 2 days in filing the SA against the Judgment and
Decree passed in A.S.No.22/2015 dt.21-3-2023 on the file of XV Additional
District Judge, Nuzvid, Krishna Dist., in the interest of justice.
IA NO: 2 OF 2023
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
suspend the operation of the Decree and Judgment and Decree, dt.
21.03.2023, passed in A.S. No 22 of 2015 on the file of XV Additional District
Judge. Krishna District at Nuzvid, pending disposal of the Second Appeal.
Counsel for the Appellant:
1. M M M SRINIVASA RAO
Counsel for the Respondent(S):
1. SREENIVASA RAO VELIVELA
The Court made the following:
JUDGMENT:-
This Second Appeal is filed aggrieved against the Judgment and decree in A.S.No.22 of 2015 on the file of XV Additional District Judge, Nuzvid, dated 21.03.2023, setting aside the Judgment and decree in O.S.No.172 of 2007 on the file of Principal Junior Civil Judge, Tiruvuru, dated 17.03.2015.
2. The appellant herein is the defendant and the first respondent (died) herein is the plaintiff in the Original Suit No.172 of 2007 on the file of Principal Junior Civil Judge, Tiruvuru. The respondents 2 to 6 are the legal heirs of deceased plaintiff.
3. The plaintiff initiated action in O.S.No.172 of 2007 on the file of Principal Junior Civil Judge, Tiruvuru, with a prayer to direct the defendant to vacate the suit schedule property within the time fixed by the Court and deliver vacant possession to him.
4. The learned Principal Junior Civil Judge, Tiruvuru, dismissed the suit with costs. Felt aggrieved of the same, the unsuccessful plaintiff in the above said suit filed the aforesaid appeal before the first appellate Court. The learned XV Additional District Judge, Nuzvid, partly allowed the first appeal by setting aside the decree and judgment passed by the trial Court. Aggrieved thereby, the unsuccessful defendant/appellant approached this Court by way of second appeal.
5. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.172 of 2007, is as follows:
The plaintiff is the absolute owner of Ac.1.66 cents of dry land in R.S.No.1014/8 of Ramachandrapuram in Cheemalapadu Revenue village. The defendant worked as farm servant under the plaintiff previously and thereafter stopped working under the plaintiff. The defendant worked for a period of 4 years and stopped working under the plaintiff for about 3 years back. At the time of joining, the defendant requested the plaintiff to permit him to raise a thatched house in an extent of Ac.0.06 cents and the plaintiff accepted and allowed the defendant to reside in the plaint schedule property which is Ac.0.06 cents in R.S.No.1014/8 with a condition to vacate the said premises within 2 or 3 years, for which the defendant also agreed to vacate the schedule property and hand over the vacant possession to the plaintiff. About 6 months ago, the defendant raised another thatched shed for accommodating for cattle in the plaint schedule property without obtaining permission from the plaintiff. The plaintiff having noticed the act of the defendant, asked him to vacate the premises and hand over the vacant possession to him. But the defendant has been postponing the matter from time to time and failed to vacate the premises and to hand over the same to the plaintiff.
7. The defendant filed written statement denying the contents of plaint averments and further contended as follows :-
The defendant came to know that the plaintiff is not the absolute owner of the schedule property and the property belongs to the joint family and the plaintiff is managing the same being surviving male member of the joint family. It is also learnt that a partition suit is pending on the file of Senior Civil Judge's Court, Nuzvid in O.S.No.37 of 2007 and the plaintiff in that suit informed him that she got 1/5th share in the schedule property.
ii) The defendant is a permanent licensee and enjoying the plaint schedule property having constructed a permanent structure therein and he is an irrevocable license holder and he and his wife worked as farm servants under the plaintiff since 2 decades and they are very sincere workers.
Thereby, the plaintiff granted license to him in the year 1996 and he constructed permanent sheds in an extent of Ac.0.06 cents in R.S.No.1014/8 for their residence and for their cattle. Accordingly, he constructed the sheds with brick walls and by flooring with Cuddapah stones by spending the amounts.
iii) The license granted by the plaintiff in his favour is irrevocable, but the plaintiff knowing fully well about the raising of the sheds, filed this suit with false averments and the property is also located by placing survey stones and he is paying house tax since 1999. He also obtained electricity and water connection and paying electricity charges from 2001 and water charges from 2003. The plaintiff never raised any objection and in view of abnormal increase of rising of prices, the plaintiff filed this suit in order to grab the property.
8. On the basis of above pleadings, the learned Principal Junior Civil Judge, Tiruvuru framed the following issues for trial:
1. Whether the plaintiff is entitled possession of plaint schedule property as prayed for?
2. Whether the plaintiff is entitled for future profits?
3. To what relief?
9. During the course of trial in the trial Court, on behalf of plaintiff PW1 was examined and Ex.A1 to Ex.A6 were marked. On behalf of defendant DW1 to DW3 were examined and Ex.B1 to Ex.B9 were marked.
10. The learned Principal Junior Civil Judge, Tiruvuru, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit with costs. Felt aggrieved thereby, the unsuccessful plaintiff filed the appeal suit in A.S.No.22 of 2015 before the learned XV Additional District Judge's Court, Nuzvid, wherein, the following points came up for consideration.
1. Whether there are any valid grounds to interfere with the judgment and decree dated 17.03.2015 passed in O.S.No.172 of 2007 by the learned Principal Junior Civil Judge, Tiruvuru and it is liable to be set aside?
2. To what relief?
11. The learned XV Additional District Judge, Nuzvid, i.e., first appellate judge, after hearing the arguments, answered the points, as above, against the defendant/appellant and in favour of the plaintiff/respondent and partly allowed the appeal filed by the plaintiff. Felt aggrieved of the same, the unsuccessful defendant in OS.No.172 of 2007 filed the present second appeal before this Court.
12. After institution of the second appeal by the defendant in the suit, this Court ordered notices to the respondents before admission and the counsels on both sides argued the matter.
13. Heard Sri M.M.M.Srinivasa Rao, learned counsel for appellant and Sri Srinivasa Rao Velivela, learned counsel for respondents.
14. 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 C.P.C. could be admitted only when the appellant satisfies this Court that the substantial question of law between the parties arise in this case. A proper test for determining whether a question of law raised in the case is substantial would be or whether it directly and substantial effects 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 vs. Arigela Laxmi1, the Apex Court held that it is not within the domine of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact namely, 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 or the meaning of entries and 1 (2007) 8 SCC 155 the contents of the documents cannot be held to be raising a substantial question of law.
15. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of C.P.C., it is for him to meet the above principles and satisfy the Court whether there exists any substantial question of law.
16. The second appeal is filed against the findings arrived by the first appellate Court, the grounds urged in the second appeal are to be scrutinized to find out whether the appellant has shown any substantial question of law. The contention of the appellant herein is that the judgment of the first appellate Court is perverse and it did not consider the findings of the trial Court properly and against law it allowed the first appeal and failed to assign proper reasons for setting aside the judgment of the trial Court.
17. One of the grounds urged in the second appeal by the appellant is that the first appellant Court has not considered the legal proposition held in Tavva Lakshmi Narasimha Rao v. Sankaranarayana Sarma 2 . The facts in the above referred decision by the appellant counsel relates to the suit filed for recovery of arrears of rent on the ground that a lease was granted for a period of one year and the rent is Rs.9/- per annum and that at the end of the year the tenant agreed to pay a monthly rent of Rs.3/-, whereas the facts in the present case are the plaintiff is the absolute owner of Ac.1.66 cents of dry land in R.S.No.1014/08 of Ramachandrapuram and the defendant worked as a farm servant under the plaintiff previously and thereafter he stopped to work under the plaintiff. The plaintiff further pleaded in the present case on hand that at the time of joining, the appellant requested the plaintiff to permit him to raise a thatched house in an extent of Ac.0.06 cents from out of Ac.1.66 cents as a farm servant and the plaintiff accepted and allowed the appellant to reside in the plaint schedule property which is an extent of Ac.0.06 cents to 2 1955 SCC online A.P. 313 protect the remaining property surrounded by the plaint schedule property. Therefore, the ratio laid down in the aforesaid case law is not at all applicable to the present facts of the case.
18. The learned counsel for appellant would contend that the appellant is a permanent licensee and enjoying the plaint schedule property having constructed a structure therein and irrevocable license was granted, the same cannot be cancelled. The contention of the appellant is that irrevocable license was granted to him and the same cannot be cancelled. Admittedly, the appellant did not choose to adduce any evidence with regard to prove the aforesaid contention that the license is irrevocable and it cannot be cancelled. Furthermore, the appellant to establish his possession relied on electricity receipts and house tax receipts, those documents are not sufficient to come to conclusion that the possession of the defendant is a permanent licensee. As per the own admissions of DW2 Assistant Engineer in electricity department, the plaintiff made an application to DW2 for cancellation of electricity connection to the house constructed by the defendant. Furthermore, the evidence available on record goes to show that the house constructed by the defendant is only a temporary structure and not a permanent structure. The defendant admits that he constructed a house with brick walls with palmyra leaves. Moreover, section 60B of Easements Act is not at all pleaded by the defendant in the suit.
19. The admitted facts of both the parties are the plaintiff is the owner of total extent of Ac.1.66 cents of dry land in R.S.No.1014/2008 and the appellant worked as a farm servant under the plaintiff previously, in those days the defendant requested the plaintiff to permit him to raise a thatched house in an extent of Ac.0.06 cents only from out of Ac.1.66 cents as a farm servant and the plaintiff allowed the defendant to reside in the plaint schedule property by raising a temporary structure in an extent of Ac.0.06 cents. The contention of the plaintiff is that without his permission just 6 months prior to filing of the suit, the defendant constructed a twin sheeted shed for keeping the cattle and having noticed the act of the defendant, the plaintiff asked him to vacate the premises and handover the vacant possession to the plaintiff, but the defendant refused to vacate the same and that the plaintiff also issued a notice to the defendant to vacate the premises. It is an admitted fact by the appellant that he worked as a farm servant previously, in those days the plaintiff permitted him to raise temporary construction to reside in the plaint schedule in an extent of Ac.0.06 cents from out of Ac.1.66 cents of total dry land as a farm servant and he made a temporary structure and the duty of the farm servant is to look after the remaining property surrounded by the plaint schedule property. It is also not in dispute that the relationship in between the plaintiff and defendant are strained subsequent to issuing of legal notice and the defendant is also not working as a farm servant.
20. The learned counsel for appellant would contend that the plaintiff failed to prove that the appellant is in permissive possession. The trial judge held in its judgment that the plaintiff failed to produce any evidence to show that the possession of the defendant is permissive possession. In the case on hand, it is a fact that the plaintiff is the original owner of Ac.1.66 cents of dry land as admitted by the appellant, from out of the total Ac.1.66 cents permissive possession was given to the defendant to construct a temporary structure in an extent of Ac.0.06 cents. Therefore, it is for the defendant to prove that he is in a possession of irrevocable licensee but not permissive possession.
21. The law is well settled that a license is irrevocable under Section 60B of Easements Act if 3 conditions are fulfilled by the appellant namely (i) the licensee executed work of the permanent character, (ii) he did so acting upon the licensee, and (iii) he incurred expenses in doing so. The onus of proving the aforesaid 3 facts lies upon the licensee and in the absence of any evidence on these questions, the license cannot be irrevocable under Section 60B of the Act. In the case on hand, the defendant constructed a thatched roof house and without the permission of the plaintiff, the defendant constructed cattle shed. Though the plaintiff insisted him to vacate, but he did not vacate the same which leads to issuance of legal notice and so also institution of the suit proceedings by the owner of the schedule property. Admittedly, no evidence is produced by the appellant to show that with the permission of the plaintiff, the defendant made asbestos sheets shed for keeping the cattle, the defendant also failed to prove he incurred how much expenses in doing so, the appellant failed to prove the above 3 conditions which are required under Section 60B of Easements Act. The execution of work is done by the appellant as a permissive possession. In the pleadings of the defendant, he did not invoke the protection of clauses of the Easement Act.
22. In a case of Maria Margarida Sequeira Fernandes and others vs. Erasmo Jack de Sequeira3, the Apex Court held as follows:
Principles of law which emerge in this case are crystallized as under:-
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.
The Apex Court further held as follows:
3(2012)5 SCC 370 [102] In this view of the matter, the impugned judgment of the High Court as also of the Trial Court deserve to be set aside and we accordingly do so. Consequently, this Court directs that the possession of the suit premises be handed over to the appellant, who is admittedly the owner of the suit property.
23. In the case on hand, the ownership of the plaintiff is not disputed by the appellant before this Court, the learned counsel for appellant would contend that the plaintiff is original owner of the plaint schedule property and other property in total an extent of Ac.1.66 cents, from out of Ac.1.66 cents as a farm servant, the appellant requested the plaintiff to construct a temporary thatched shed in an extent of Ac.0.06 cents, on the request of the defendant in view of the relationship in between master and servant, the plaintiff permitted the defendant to made a temporary structure and the contention of the plaintiff is that without his permission the appellant raised another asbestos sheets shed and on noticing the same he insisted the appellant to vacate the premises but he refused to do so, which leads to institution of legal notice and so also filing of the suit. Furthermore, the material on record reveals that DW3 admits that the construction was made in the plaintiff's land and there is no permission to proceed with the construction work. In the case on hand, the appellant did not claim any title to the suit property. The appellant has not been able to establish the conditions as required under Section 60B of Easements Act.
24. The material on record reveals that the premises of Ac.0.06 cents from out of Ac.1.66 cents in question was given by the plaintiff to the farm servant, here the possession of the defendant is a care taker. The care taker holds the property of principal only on behalf of principal. Therefore, on demand of principal he ought to have return back the possession of the premises to the true owner of suit property on demand by the plaintiff. As stated supra, the appellant did not claim any title to the plaint schedule property and he has not filed any suit disputing the title of the appellant.
25. In the case of (2012) 5 SCC 370, as stated supra, the Apex Court held as follows:
Possession is flexible term and is not necessarily restricted to mere actual possession of the property. The legal conception of possession may be in various forms. The two elements of possession are the corpus and the animus. A person though in physical possession may not be in possession in the eye of law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contact. To gain the complete idea of possession, one must consider (i) the person possessing, (ii) the things possessed and, (iii) the persons excluded from possession. A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing. It is in this light in which the concept of possession has to be understood in the context of a servant and & master."
The ratio of this judgment in Sham Lal (supra) is that merely because the plaintiff was employed as a servant or chowkidar to look after the property, it cannot be said that he had entered into such possession of the property as would entitle him to exclude even the master from enjoying or claiming possession of the property or as would entitle him to compel the master from staying away from his own property.
In view of the aforesaid settled law by the Apex Court, I am of the considered view that the servant cannot claim absolute right in possession for ever throughout his life without transferring any title to him, furthermore, he cannot compel the owner of the property that he will not entitle to get back his possession. Therefore, the possession of the servant is possession of the real owner only, a servant cannot be said to be having any interest in the suit property. It cannot be said that a servant can exercise such possession or right to possession over the property as to exclude the master and the real owner of the property from his possession or exercising right to possession over the property.
26. As noticed supra, in the case on hand, the appellant failed to establish that his possession is a licensee and irrevocable license has been granted to him. As stated supra, the provisions under Section 60B of Easements Act indicates that a license is irrevocable at the will of the grantor and the revocation may be expressed or implied section 60 enumerates the conditions under which a license is irrevocable. The parties may agree expressly or impliedly that a license which is prima facie revocable not falling within either of the two categories of license as contemplated by Section 60 of the Act shall be irrevocable. Such agreement may be in writing or otherwise and in terms or conditions may be expressed or implied. A license may be oral also in that case, terms, conditions and the nature of the license can be gathered for the purpose for which the license is granted coupled with the conduct of the parties and the circumstances which may have led to grant of the license. In the case on hand, admittedly, there is no evidence on record to show that irrevocable license was given to the appellant.
27. In the case on hand, the appellant failed to satisfy the requirements of Section 60B of Easements Act. Furthermore, the appellant has not pleaded in the written statement that the license was irrevocable as contemplated under Section 60B of the Act and in the absence thereof it was not opened to the trial Court to make out a new case for the defendant, holding the license is irrevocable. The licensee failed to plead and prove by positive evidence that "the licensee acting upon the license" executed a work of permanent character and incurred expenses in its execution so as to attract Section 60B of Easement Act. Therefore, in the absence of any document containing the terms and conditions of the license it cannot be said that the license was irrevocable.
28. For the aforesaid reasons, the contention of the appellant that the judgment of first appellate Court is perversive and the first appellate Court did not consider the findings of the trial Court properly and against law it allowed the first appeal, is no basis and not sustainable.
29. Having considered the contentions and having verified the entire record, the first appellate Court decided the appeal by considering the evidence of both the parties and the first appellate Court considered the pleadings on both sides and evidence on both sides and recorded the admissions made by both sides during the cross examination of witnesses. It properly considered the affect of that evidence and there is no illegality in the impugned judgment of the first appellate Court. At any rate, the grounds urged by the appellant did not disclose a substantial question of law between both the parties to the appeal.
30. For the aforesaid reasons, this Court found that the appellant failed to show and satisfy this Court about the existence of any substantial question of law arising between the parties and therefore, this second appeal cannot be admitted.
31. In the result, the second appeal is dismissed at the stage of admission and as a consequence, the judgment dated 21.03.2023 of learned XV Additional District Judge, Nuzvid in A.S.No.22 of 2015 is confirmed, as such, the appellant shall vacate the suit schedule premises and deliver vacant possession of the plaint schedule property to the plaintiff within two months from the date of this judgment. Considering the circumstances of the case, each party do bear their own costs in the suit and appeals.
Miscellaneous petitions, if any, pending in this appeal shall stand closed.
//TRUE COPY// VENUTHURUMALLI GOPALA KRISHNA RAO,J To,
1. PARISE SRI RAMA MOHANA RAO, (DIED)
2. PARISE SUVARCHALA DEVI, W/O. (LATE) SREE RAMA MOHANA RAO, HINDU, AGED ABOUT 60 YEARS, HOUSEWIFE, R/O. RAMACHANDRAPURAM, A.KONDURU MANDAL.
3. GURRAM KALYANI, W/O. SRINIVASA RAO, HINDU, AGED ABOUT 39 YEARS, HOUSEWIFE, R/O. RAVINUTHALA, BANAKALLU MANDAL, KHAMMAM DISTRICT, TELANGANA STATE.
4. PARISE VENKATA KOTESWARA RAO, S/O. SREE RAMA MOHANA RAO, HINDU, AGED ABOUT 36 YEARS, AGRICULTURIST, R/O. RAMACHANDRAPURAM, A.KONDURU MANDAL.
5. GADDALA KAVITHA, W/O. RAJU, HINDU, AGED ABOUT 33 YEARS, HOUSEWIFE, R/O. KOTHAGUDEM TOWN, KOTHAGUDEM-
BADRACHALAM DISTRICT, TELANGANA STATE
6. PARISE ANIL KUMAR, S/O. (LATE) SREE RAMA MOHANA RAO, HINDU, AGED ABOUT 31 YEARS, EMPLOYEE, R/O. RAMACHANDRAPURAM, A.KONDURU MANDAL
7. Two CD Copies HIGH COURT VGKRJ DATED:04/10/2024 ORDER SA 356/2023