Andhra HC (Pre-Telangana)
Nandinampati Lakshmi Narasimha Rao vs Sirikonda Veera Raghavamma And Others on 10 February, 2000
Equivalent citations: 2000(3)ALD685, 2000(4)ALT377
JUDGMENT
1. These three appeals arises out of a common judgment and decree dated 25-9-1995 passed by the learned Subordinate Judge, Eluru in OS Nos.50of 1992 and OS No.65of l993. OS No.50 of 1992 was filed seeking the relief of specific performance of an oral agreement of sale in respect of the premises bearing Door No.7A-9-27/2 along with a site of 71.6 sq. yards situate at Main Bazaar, Eluru town or in the alternative to pay damages of Rs.2.00 lakhs. OS No.65 of 1993 was filed seeking eviction of the defendants from the above premises and for recovery of arrears of rent and damages. Both the suits having been dismissed by a common judgment, the plaintiff in OS No.50 of 1992 filed AS No.104 of 1997, and the plaintiff in OS No.65 of 1993 filed AS No.154 of 1995 on the file of the I Additional District Court, West-Godavari District at Eluru, which subsequently was transferred pursuant to an order of this Court and renumbered as AS No.1943 of 1998. The defendants in OS No.65 of 1993 filed the appeal AS No.3 of 1996 initially as against a part of the decree in OS No.65 of 1993 whereunder the suit was decreed for rents of Rs.48,049/- before the District Court, West Godavari at Eluru, which had also been transferred pursuant to an order of this Court and was renumbered as AS No.2283 of 1999. As in these three appeals the parties are same, and common questions of law and facts are involved, they can be disposed of together.
2. The facts leading to the filing of the present appeals in brief may be stated thus:-
The premises bearing Door No.7A-9-27/2, the northern portion in the western side measuring 71.6 sq.yds, situate at Main Bazar at Eluru in West-Godavari District (hereinafter referred to as "the suit property") originally belonged to one Sirikonda Bhimeswara Rao. It was let out to Nandanampall Lakshmi Narasimharao, way back in the year 1969 fora rent of Rs.500/-per month on 20-11-1969. Since then the said Nandanampati Lakshmi Narasimha Rao had been carrying on cloth business under the name and style of Sri Savithru Silk Palace. Smt. Sirikonda Veera Raghavamma is the second wife of Bhimeswara Rao, and Lakshmikantharao and Nageswararao are their sons. One Sri Durga Prasadarao and Smt. Nageswaramma are the son and daughter respectively of the said Bhimeswara Rao, through his first wife. The said Bhimeswara Rao died intestate on 21-5-1978. Sri Durga Prasadarao managed the property for some time after the demise of his father. In a subsequent settlement Durga Prasadarao and his sister Nageswaramma executed a relinquishment deed on 7-5-1991 in favour of their stepmother Sirikonda Veera Raghavamma and stepbrothers Sirikonda Lakshmikantharao and Sirikonda Nageswararao. Thus, Raghavamma and Lakshmikantharao and Nageswararao have become absolute owners of the suit property.
3. The rent of the suit property was increased and was split up at Rs.700/- per month payable for Sri Savithru Silk Palace and at Rs.300/- per month payable for Sri Savithru Textiles in lumpsum at the end of the year.
4. It is the case of the plaintiff in OSNo.50 of 1992 that the rent of the premises was increased and was split up at Rs.700/- per mensem for Sri Savithru Silk Palace and Rs.300/- payable per mensem for Sri Savithru Textiles, but in lumpsum each year by 31st March besides paying a sum of Rs.900/- per year. The rent used to be paid accordingly in respect of the suit property for Sri Savithru Silk Palace and Sri Savithru Textiles by way of cash and by way of adjustments towards the value of the goods purchased on credit as per the respective accounts. Durga Prasadarao, the son of late Bhimeswara Rao used to sign in the account books of both the firms. There was a fire accident on 30-7-1986 where, according to Lakshmi Narasimharao, the stock in trade relating to both the firms was gutted, resulting in loss of about five lakhs. Lakshmi Narasimharao got the building repaired with his own expenses so as to enable him to carry on the business with the consent of Veera Raghavamma and her step son Durga Prasadarao, on an understanding that Lakshmi Narasimha Rao might carry on the business in the said building as long as he liked, and preference would be given to him for purchasing the same in the event of any sale of the suit property.
5. Veera Raghavamma herself, and under the General Power of Attorney, executed by her sons, sold away the suit property under a registered sale deed on 9-12-1991 for a consideration of Rs. 1,60,OOOA in favour of one Sri Ramesh Kumar Jain, the plaintiff in OS No.65 of 1993. After the said sale, a quit notice dated 11-1-1992 was issued by her to Lakshmi Narasimha Rao informing inter alia, the sale in favour of Ramesh Kumar Jain and requesting him to take arrears of the (Katha) debt and to vacate the premises in favour of the purchaser. Lakshmikantharao, after receiving the said notice got a notice dated 16-2-1992, issued to the said Veera Raghavamma and Ramesh Kumar Jain through his Counsel whereunder he claimed that there was an oral agreement of sale in respect of the suit property in his favour for a consideration of Rs.2,50,000/- on 1-12-1991 with a promise to execute the sale deed on or before31-l-1992. In reply thereto, Veera Raghavamma got a notice dated 12-3-1992 issued to the Counsel of Lakshmi Narasimha Rao denying the oral agreement of sale.
Upon receiving the same, the said Lakshmi Narasimha Rao got a registered lawyer's notice dated 21-3-1992 issued to the said Veera Raghavamma gain in view of the averments made in her reply notice while informing that the rents payable over the suit property were remitted by money orders. Ramesh Kumar Jain, the purchaser of the property, got a notice dated 1-4-1992 issued to the Counsel of Lakshmi Narasimha Rao in reply to the copy of the notice received by him. Thereupon, Lakshmi Narasimha Rao, as aforesaid filed the suit OS No.50 of 1992 for the relief of the specific performance and for the damages in the alternative on 9-4-1992. Subsequently, he filed RCC No.5 of 1993 before the Rent Controller at Eluru against Veera Raghavamma and Ramesh Kumar Jain under Sections 8 and 9 of the Rent Control Act, seeking permission to deposit the rents in respect of a portion of the suit property. His wife Smt. Savithri filed RCC No.6 of 1993 before the Rent Controller against Veera Raghavamma and Ramesh Kumar Jain seeking permission to deposit the rents in respect of the remaining portion of the suit property. Both of them claimed to be the tenants, carrying on business differently under the name and style of Sri Savithru Silk Palace and Sri Savithru Textiles respectively in separate portions in the same building agreeing to pay rents of Rs.775/- and Rs.300/- for the months of January, 1993 and February, 1993 respectively. Ramesh Kumar Jain got another lawyer's notice dated 5-5-1993 issued to the said Lakshmi Narasimha Rao and his wife Smt. Savithri through his Counsel requesting them to vacate the premises within seven days from the date of receipt of the said notice on the ground of personal requirement for carrying on the business. Then he filed another suit OS No.65 of 1993 for eviction and for arrears of rent from 9-12-1991 to 31-5-1992 and also for damages at the rate of Rs.3,000/-per month.
6. The suit for specific performance filed by the said Lakshmi Narasimha Rao was resisted by the defendants denying the alleged oral agreement of sale. The other suit OS No.65 of 1993 field by Ramesh Kumar Jain was resisted by Lakshmi Narasimha Rao and his wife Savithri on the ground that there was an oral agreement of sale in respect of the same property in favour of Lakshmi Narasimha Rao and also on the ground of want of jurisdiction of the civil Court stating that there are two different tenancies in their favour in respect of the suit property, and that Rent Controller alone had jurisdiction.
7. The trial Court framed the following issues at the time of settlement of issues in OS No.50 of 1992 and OS No.65 of 1993:
"1. Whether the oral agreement pleaded by the plaintiff is true, valid and binding on defendants?
2. Whether the plaintiff is entitled to the refund of amount claimed in the suit?
3. Whether the plaintiff is entitled for any interest, if so at what rate?
4. To what relief?
8. After hearing both the parties on 3-7-1995, issues 1 and 2 framed on 7-8-1995 were recast as under:-
1. Whether the oral agreement dated 1-12-1991 is true, valid and binding on defendants 1 to 4?
2. Whether the plaintiff is entitled for refund of the amount from the defendants 1 to 3 and also entitled for damages in the alternative together with interest?
3. Whether the alienation made in favour of defendants No.4 dated 9-12-1991 is binding on the plaintiff?
9. On a joint memo filed by both the parties evidence was recorded in OS No.50 of 1992 and the same was treated as evidence in the other suit also. Lakshmi Narasimha Rao himself was examined as PWl besides getting Exs.A1 to A42 marked on his side. Veera Raghavamma and Ramesh Kumar Jain the father of Ramesh Kumar Jain examined as DWs.1 and 2 respectively besides examining the Advocate Commissioner as PW3 and getting the documents Exs.Bl to B23 marked. The Commissioner's report was marked from the side of the Court as C1 and C2 respectively.
10. Upon considering the evidence, both oral and documentary, and upon hearing both sides the learned Subordinate Judge, Eluru dismissed the suits OS No.50 of 1992 and OS No.65 of 1993 as aforesaid, and insofar as the relief of eviction is concerned he granted a decree in favour of the plaintiffs for the arrears of rents from 9-12-1991 onwards. Having been aggrieved, three appeals have been filed as aforesaid, one before this Court and the other two initially before the District Court at Eluru, which were subsequently transferred to this Court and re-numbered.
11. Sri M.S.K. Sastry, the learned senior Counsel appearing for the appellants in the two transferred appeals, and respondents in AS No. 104 of 1997 contends that the findings given by the trial Court in the suit OS No.50 of 1992 are unassailable and the suit for specific performance basing upon an oral agreement of sale is nothing but frivolous. The learned Counsel further contends that the suit property being single premises cannot be split up into two different premises and claim two different tenancies as such. Even assuming that there are two tenants, since it being a single lease, has to be construed as one tenancy.
12. Sri V.LN.G.K, Murthy, the learned Counsel appearing for the appellant in AS No. 104 of 1997 on the other hand contends that two different concerns have been admittedly carrying on business under the name and style of Sri Savithru Silk Palace and Sri Savithru Textiles having different accounts and being assessed under the Income Tax Act paying separate rents, there can validly be two tenancies although it is one premises. The learned Counsel further contends that although the premises was let out to Lakshmi Narasimha Rao in the year 1969, when he started business under the name and style of Savithru Textiles yet it is a case of implied surrender of tenancy by the husband in favour of the wife in respect of a part of the premises, and therefore, they being two different tenants, paying two sets of rents, the civil Court has no jurisdiction.
13. The facts, which are not in dispute, have been set out supra. What is in dispute between the parties inter se, is in regard to the alleged oral agreement of sale and two different tenancies, one in favour of Lakshmi Narasimha Rao and the other in favour of his wife Smt. Savithri. While it is the case of the plaintiff Sri Ramesh Kumar Jam in OS No.65 of 1993 that a consolidated rent of Rs.1,075/- was being paid; it is the case of Lakshmi Narasimha Rao and his wife that the rents are being paid yearly at Rs.700/- for Sri Savithru Silk Palace and Rs.375/- for Sri Savithru Textiles as reflected in the accounts of both the concerns.
14. In view of the respective contentions raised by the learned Counsel in this Batch of appeals, the points that arise for my determination are;
1. Whether Veera Raghavamma and her sons agreed orally to sell the suit property for a consideration of Rs.2,50,000/- in favour of Lakshmi Narasimha Rao under an oral agreement of sale on 1-12-1991;
2. Whether Lakshmi Narasimha Rao and his wife Savithri are tenants in two distinct portions of the suit property paying separate rents of Rs.700/- and Rs.375/- for two concerns viz., Sri Savithru Silk Palace and Sri Savithru Textiles.
15. On the first issue there is oral evidence of PW1. Except the ipse dixit of PW1 no other evidence whatsoever has been adduced in proof of the oral agreement of sale dated 1-12-1991, either direct or circumstantial. As against the sole evidence of PW1 there is the oral evidence of DWI, who categorically denied any such oral agreement of sale dated 1-12-1991. DW2 is the father of the plaintiff Sri Ramesh Kumar Jain in OS No.50 of 1992. He cannot authoritatively speak in respect of the oral agreement of sale, as he purchased the property under registered sale deed dated 9-12-1991. DW3 is the Advocate Commissioner. His evidence is not germane for consideration on this issue, but is relevant for the purpose of deciding the second issue. Therefore, on the contentious issue of oral agreement of sale there is oath against oath, of PW1 and DWI. The burden lies upon the plaintiff who filed the suit for specific performance to prove the factum of the oral agreement of sale dated 1-12-1991 so as to seek the relief of specific performance. According to PW1, the oral agreement was entered into between him and Veera Raghavamma in the presence of her stepson Durga Prasadarao and his son at the house of Veera Raghavamma. The plaintiff has not chosen to examine his own son at least to buttress his contention of the agreement between the parties orally for selling the suit property, not to speak of examining Durga Prasadarao the stepson of Veera Raghavamma. Let us therefore consider the probabilities, which either support the case of the plaintiff or militate against his claim. In his evidence as PW1 given on oath Lakshmi Narasimha Rao deposed that there was an agreement between the parties for selling the suit property for a consideration of Rs.2,50,000/-on 1-12-1991 with a specific understanding to execute the sale deed on or before 31-1-1992. He further deposed that there was an agreement to adjust the amount due to Sri Savithru Silk Palace and Sri Savithru Textiles out of the sale consideration and to pay the balance amount on the date of the registration of the sale deed before the Registrar. He further deposed that his wife agreed to purchase the building in her occupation and to adjust the amount due to her from Veera Raghavamma and her sons towards the sale consideration with an understanding to obtain the sale deed in his name for the entire suit property. Leaving aside the incongruity in the stance taken by the plaintiffs and the inconsistencies between the pleading and the proof, it is the specific evidence of PW1 that the parties agreed to adjust the amount due, to both the concerns from out of the sale consideration. Nowhere in the entire evidence PW1 stated that the amount was settled and specific sum was agreed to be adjusted towards part of the sale consideration from out of the total amount of Rs.2,50,000/-. In ordinary course, when the parties agreed under an oral agreement of sale, it must be the culmination of settlement of terms and conditions between the parties and they would have come out with the specific amounts and it could not have been validly left out to be settled subsequent thereto. It is therefore, highly improbable for the plaintiff in not coming out with the specific amount due to the two firms of Veera Raghavamma and her sons, agreed to be adjusted by the parties towards part of sale consideration. That apart, it is the evidence of DWI that she sent bankers cheques for an amount of Rs.23,960/- and Rs.33,208.75 Ps., for clearance of the debts due to Sri Savithru Silk Palace and Sri Savithm Textiles respectively and both of them have been refused to be received. PW1 admitted in his evidence that he received those amounts subsequently, of course, stating that it is without prejudice to his contentions. When he set up the plea of an oral agreement of sale with a specific condition to adjust the dues from Veera Raghavamma and her sons towards part of the sale consideration, the question of receiving the dues even under protest does not arise. If he agreed to receive the amount, he should be prepared to give up his plea of agreement of sale for the suit property. Lakshmi Narasimha Rao, the plaintiff is an experienced businessman and he is an income tax assessee. In all probability, if he really intended to give credit of the dues of Veera Raghavamma and her sons in the Katha accounts of Savithru Silk Palace and Savithru Textiles, the two concerns, contemporaneous entries in the accounts ought to have been made adjusting those dues towards the part payment of the sale consideration under the said oral agreement of sale, but the absence of any such entries in the accounts, is unexplainable. No such explanation is forthcoming even in this case regardless of the fact, whether such explanation is plausible or not. Nothing is shown in this case as to why a written contract of sale has not been executed, which under the circumstances in all probability, should have been the outcome of the settlement of the terms and conditions between the parties inter se. These probability factors militate against the case of the plaintiff, who has filed the suit for the specific performance of the alleged oral contract of sale dated 1-12-1993. Nowhere in the plaint it has been pleaded that Smt. Savithri agreed to give credit of the dues to the defendants, Veera Raghavamma and her sons, in respect of her concern Sri Savithru Textiles and further consented to obtain the sale deed for the whole premises in the name of her husband. The evidence to that effect given on oath by PW1, which is inconsistent with the plea, cannot therefore be accepted. No amount of evidence, which is at variance with the pleading, can be taken into consideration. It is therefore a case where the testimony of PW1 is be set with improbabilities and inconsistencies. The testimony of PW1, therefore does not inspire the confidence of the Court. A fortiori when it is a case where a written contract of sale should have been the outcome of the culmination of the terms and conditions between the parties in ordinary course, and in the absence of any plausible explanation for the parties not insisting for the execution of the written contract and for omission thereof, the plea of oral contract gets negatived.
16. For the foregoing reasons, the plea of oral contract of sale set up by the plaintiff Lakshmi Narasimha Rao in OS No.50 of 1992 cannot at all be accepted. The reasons given by the Court below in respect of its conclusion that it is a false plea is convincing and does not warrant any interference.
17. Apropos the second point of dual tenancy in respect of a single premises and the question of jurisdiction of the civil Court attendant thereon, it is the case of the plaintiff, Ramesh Kumar Jain in OS No.65 of 1993 that a consolidated rent of Rs.1,075/- per month is payable on every first day of the following month. A specific plea in regard thereto has been taken in Paragraph 5 of the plaint. All along, it has been the consistent stand of Lakshmi Narasimha Rao, right from the time of exchange of registered notices till he filed the suit OS No.50 of 1992 seeking specific performance of the alleged oral contract of sale, there has been no whisper that his wife Smt. Savithri has been inducted as a tenant with a specific understanding to pay a separate rent of Rs.375/- every month for a part of the said property. Quite contrary to the said plaint averments and even ruling out the plea of such dual tenancy it is discernible from the registered reply notice got issued by him in Ex.A2, dated 16-2-1992, that he has been the tenant of the suit property from 20-11-1969 onwards on a condition of paying an amount of Rs.500/- per month towards rent and has been carrying on business in the name of Sri Savithru Silk Palace, and later in the portion of the said building he has been carrying on business in the name and style of Sri Savithru Textiles. Further it is categorically mentioned in the said notice that the rent has been increased and has been split up at Rs.700/- per mensum for Sri Savithru Silk Palace and Rs.300/- per mensum for Sri Savithru Textiles, but payable in lumpsum once in an year by 31st March. The earlier stand taken up by Lakshmi Narasimha Rao, the plaintiff in Ex,A2, is obviously that he has been carrying on the business under two different names. The splitting up of rent at Rs.700/-for Sri Savithru Silk Palace and Rs.300/- for Sri Savithru Textiles ipso facto does not mean that two separate rents are being paid. The suit property is one and the same wherein the business is being carried on in ,two different names, of course, maintaining two different accounts. When the total rent being paid is the aggregate amount of these two amounts split up as the rents as aforesaid for the business convenience and for the income tax purposes, qua the landlord inasmuch as it is a single premises, one lease in my considered view, it must be only one rent. Even in the plaint filed in OSNo.50 of 1992 the same is the stand taken by Lakshmi Narasimha Rao. Plea of tenancy in favour of his wife Smt. Savithri has not been specifically made anywhere in the Ex.A2 registered notice or in the plaint OS No.50 of 1992 till RCCs. 5 and 6 of 1993 have come to be filed. In the statement filed by the defendants in OS No.65 of 1993, while reiterating the averments made in the plaint in Paras 22 and 23, in OS No.50 of 1992, for the first time they have taken up the plea that the defendants are admittedly the tenants of the respective portions of the suit property and each of them is a tenant of a distinct portion of the suit property. The specific averment made in the plaint in OS No.65 of 1993 in Para 5, as discussed by me supra, that the first defendant is carrying on business in the suit property under two different names paying a consolidated rent of Rs.1,075/- per month, has not been traversed anywhere in the written statement. In Para 20 of the written statement it is mentioned that the allegations in Paras 5 to 15 have been answered in the statement supra. The absence of specific denial of the averment of fact made in the plaint and its consequences can be seen from the provisions of Order 8, Rule 5 of the Civil Procedure Code. The general denial is not sufficient as can be seen from Rule 3 of the Order 8 of the Code. The stand of the defendants in OS No.65 of 1993 that they are tenants in distinct portions of the suit property paying separate rents is clearly inconsistent with the earlier stand taken by the first defendant in his own suit in OSNo.50 of 1992 and in the reply notice got issued by him through his Counsel under Ex.A2. The effect of such inconsistency in the stance at different stages has been totally lost sight of by the trial Court. The trial Court proceeded to consider the case of the defendants relying very much upon the admission made by Ramesh Kumar Jain the plaintiff in OS No.65 of 1993 in his reply notice marked in this case as EX.A138. In Ex.A138 legal notice got issued by him through his Counsel, it has been mentioned in Para No.2 that Lakshmi Narasimha Rao is the proprietor of Sri Savithru Silk Palace and the tenant of the scheduled premises and Smt. Savithri wife of Lakshmi Narasimha Rao is the tenant and proprietor of the aforementioned Sri Savithru Textiles. Admission in this regard can be discerned from Ex.A138 that the defendants 1 and 2 .in the suit are the tenants and they are the proprietors of two different concerns namely, Sri Savithru Silk Palace and Sri Savithru Textiles. It is difficult to cull out from this para that they are two independent tenants having been inducted into the premises in two distinct portions of the suit property. On the other hand, it is appropriate to consider that both of them are tenants of the single premises namely, the suit property. Much emphasis has been laid on this so-called admission of the plaintiff Sri Ramesh Kumar Jain under Ex.A138. Having been totally oblivious of the very stand of Lakshmi Narasimha Rao taken initially and even at the time of filing the suit in OS No.50 of 1992, the Court below committed a manifest error in not considering the relative effect of both the stands taken by PW1 and failed to weigh the same with reference to the surrounding circumstances and probabilities so as to arrive at a definite conclusion at the end. It has not been the attempt of the trial Court at all, in appreciating the evidence.
18. Even assuming for a moment that there has been an admission on the part of the plaintiff in OS No.65 of 1993 in Ex.A138, which is obviously not the stand, in the plaint filed by him, the effect of such admission shall have to be considered qua, the changed version in the plaint. Admissions, are not conclusive proof of the matters admitted, but they may operate as an estoppel provided they are not sufficiently explained. Here in this case, DW2, the father of the plaintiff has sought to explain the so-called admission made in Ex.A138 stating that his son got the notice issued in ignorance of the actual state of affairs and the admission made in Ex.A138 is not correct. The effect of such explanation sought to be made by DW2 has not been considered. The Court is at liberty to either accept or reject such an explanation, if it is unconvincing.
19. The tenancy is an outcome of agreement between the parties. The jural relationship of landlord and tenant has to be established before invoking the question of jurisdiction. Till the filing of the RCCs. 5 of 1993 and 6 of 1993 there has been no such plea of tenancy in between Smt. Savithri and Smt. Veera Raghavamma, the erstwhile owner of the suit property. The burden is upon the tenant, who takes up the plea of tenancy to prove the jural relationship of landlord and tenant. The second defendant Smt. Savithri has not chosen to come into the witness box, to testify that she has been inducted as tenant in a portion of the suit property on the condition of paying a separate rent of Rs.375/- per month total in lumpsum at the end of the year. It is only the plea of her husband Lakshmi Narasimha Rao and his testimony as PW1 that is available on record. But, as discussed by me above, he has taken inconsistent stands at two different stages. In this backdrop, the absence of any statement on oath by the second defendant Smt. Savithri, gains significance. It may be mentioned here that in the absence of any specific plea, and in the absence of any evidence in support thereof, the jural relationship of landlord and tenant, which a sine qua non for the jurisdiction of the Court, cannot be considered to have been brought home convincingly. Voluminous documentary evidence has been sought to be relied in this regard by the defendants. Exs.A11 to A48 are the various assessment orders and payment of money under various challans in processing the income tax. In respect of Sri Savithru Silk Palace Exs.A61 to A106 are the relevant entries in the day book and Ex.A107 to A109 are the relevant entries in the ledger and Exs.A110 to 136 are the kathas pertaining to Sirikonda Durga Prasadarao, the stepson of Veera Raghavamma. These entries, no doubt, show the payment of rents, but ipso facto, they do not establish the jural relationship of landlord and tenant between the parties inter se particularly, in the wake of the plea that the second defendant has been inducted as a tenant in the premises on payment of separate rents. The effect of these entries cannot be considered in isolation without having due regard to other attendant circumstances.
20. Exs.A40, 41 and 42 are the photos of the suit property. They show that the suit property is a single premises and has not been demarcated into two distinct portions. The evidence of DW3, the Commissioner, shows that it is one premises and has not been clearly demarcated into two. His evidence coupled with the report in Ex.C1 further goes to show that the business is one and the same inasmuch as there is one cash counter for both the concerns and there is only one entry for ingress and egress and that there is a sign board containing the name of Savithri Silk Palace in the front. From the above oral and documentary evidence, the following circumstances would emerge and are clearly discernible.
1. The suit property is a single premises with one entry for ingress and egress. There is only one cash counter.
2. The name suggestive of the business of both the concerns is one and the same and that is how the fact that the business is one and the same can be concluded though there are two different concerns.
3. Lakshmi Narasitnha Rao was the tenant-inducted way back in the year 1969 in respect of the whole of the premises when he started the business in the name and style of Savithru Silk Palace.
4. There is no specific date on which his wife Savithri has been inducted. No separate agreement of any tenancy between Veera Raghavamma and Savithri has been pleaded and proved.
5. The premises when gutted due to fire accident was got repaired by Lakshmi Narasimha Rao incurring the expenditure by himself, according to his case.
6. It is he again, according to his case, wanted to purchase the entire property in his name under an oral agreement of sale.
7. Rent is being paid in cash as well as in kind.
8. The amounts shown in the katha account of Durga Prasadarao, the stepson of Veera Raghavamma are being given credit to towards the rents payable showing the payment of rents in the books of accounts of both the concerns.
9. The accounts of two different concerns in the two different names, have obviously been assessed by the Income Tax Department separately.
21. The effect of these circumstances which are clearly emerging from the evidence has got to be considered in view of the relationship inter se between the defendants and in view of the fact that Lakshmi Narasimha Rao was inducted as a tenant in the first instance. Even assuming for a moment that both the husband and wife are the tenants in the premises, they being the members of the joint family can be treated as the joint tenants. There is no specific evidence to show that they have been the tenants inducted separately in respect of two distinct portions of the suit property on the condition of payment of rents separately, but not by means of a consolidated amount, and in the absence of such evidence, adverse inference is inescapable in view of the facts and circumstances of this case. Certainly they cannot be called as tenants in common. The distinction between joint tenants and tenants-
in-common cannot be lost sight of, where in the former case there is unity of title and in the latter case there is unity of possession but the concept of tenancy-in-common is alien to the principles of Hindu Law. If both the defendants are treated as joint tenants having unity of title in respect of the suit property, in the absence of any evidence to the contrary showing that they are tenants in respect of two distinct portions of the suit property, they shall have to be considered as joint tenants in respect of one premises namely, the suit property. The possession of the second defendant vis-a-vis the landlord can also be considered as that of a mere licensee when her husband is the tenant of the entire premises from the inception. In the absence of any specific agreement of tenancy between her and the landlord inter se she cannot be treated as a separate tenant even. It may be reiterated here that no such separate agreement of tenancy having been entered into has been specifically pleaded even in this case except some vague recitals at the end of the plaint. Under the circumstances, if two or more persons hold possession under one lease, in the absence of any clear evidence to the contrary, the entire body of tenants qua the landlord constitutes a single tenancy.
22. Sri M.S.K. Sastry, the learned Counsel appearing for the appellants, in the two transferred appeals, has sought to raise this point, and to drive home the point has sought to rely upon a Full Bench decision of the Lahore High Court in Moti Lal and another v. Kartar Singh and others, reported in 1C 1930 (Vol.127), Page 1. It has been held, per majority, as follows:
"Where two or more persons hold a demise under one, lease as between themselves their rights may be satisfied, and they might hold the tenancy in well defined shares capable of separate enjoyment or transmission to the respective heirs of each, as if it were his separate property. But qua the landlord they constitute one persona, each constituent part of which possesses certain common rights in the whole, and it is liable to discharge common obligations in their entirety."
23. After referring to various precedents at Page 3 in the first para it has been observed that in the case of a "joint" occupancy tenancy of the kind mentioned in the question the tenants, as between themselves, hold their shares independently of each other, and on the death of any one of them his share possess to his own "heir" or "heirs" under Section 59(1) and (2); but as against the landlord they or their "heirs" taken together, constitute a single tenant, and as long as any of these persons is in existence, the landlord cannot claim the share of him whose line has died out. The dissenting view of his Lordship Mukherjee, J., is that tenants or tenants-in-common and each one of them is a tenant in respect of the whole of the estate.
24. The learned Counsel further sought to place reliance upon a judgment of this Court in Venkayya v. Subbarao, reported in AIR 1957 AP 619, so as to drive home the point of distinction between joint tenancy in common.
25. Sri V.L.N.G.K. Murthy, the learned Counsel for the appellants sought to place reliance upon the same judgment to buttress his contention that there has been implied surrender of lease by the husband in favour of the wife in respect of that part of the premises in which the wife has been carrying on business. It has been held in the said judgment that under the law prevailing in India an oral surrender of lease hold trust is valid and in India, if a landlord and tenant by mutual agreement do any act or enter into any transaction which is inconsistent with the continuance of the existing lease or tenancy, there would be an implied surrender. It is, therefore, the contention of the learned Counsel that there is an implied surrender of tenancy by the husband in favour of the wife and therefore both of them are the tenants in respect of the suit property carrying business separately in two different names.
26. At this juncture Sri M.S.K. Sastry, the learned Counsel has invited any attention to the definition of building enjoined in clause (3) of Section 2 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, I960. The definition reads as follows:
Clause 3: Building means any house or hut or part of a house or hut, let or to be " let separately for residential or non-residential purpose and includes.
27. The learned Counsel has sought to lay emphasis on the word "separately". It is, therefore, his contention that the building or part of it shall be given separately on lease. In the absence of any proof to the effect that the second defendant has been inducted separately in the same premises, she cannot be considered to be a tenant of the suit property, which is a single entity. I see considerable force in the contention of the learned Counsel.
28. Finally, the reliance has been sought to be placed upon the judgment of the Apex Court in Habibunissa Begum v. G. Doraikannu Chettiar, . That was a case where the suit premises were let out under a single lease to the respondent. Subsequently on account of the acquisition of a portion of the land by the Corporation for the purposes of lying a road resulted in the premises being separated by the road. Two separate numbers have been assigned to the two portions separated by a road. The landlord filed a suit for ejectment of the tenant in respect of a portion of the building, which was allowed initially. Ultimately the Supreme Court held that the lease being a single indivisible contract of tenancy, it couldn't be split up by the Court and order partial ejectment of the tenant from the premises.
29. Applying the same to the facts in the instant case, the lease being a single indivisible lease, here also it is not permissible for the landlord to seek eviction of one tenant or the other among two. What is discernible from the above judgment of the Apex Court is that it is single indivisible lease. As discussed by me supra, there is clear evidence on the record to show that the suit property is a single premises having one entry for ingress and egress with no signs of any distinct demarcation. The tenant has been inducted way back in the year 1969 in respect of the whole of the premises. Even assuming for a moment that the wife of the tenant has been carrying on business with the consent of the landlord that will not give rise to draw an inference that she is a separate tenant in respect of a portion of the building and the first tenant remains to be the tenant in respect of the other portion of the shop. Nor does it give rise an inference of implied surrender of tenancy by the husband in favour of his wife in respect of a portion of the premises. The voluminous documentary evidence showing adjustment of rents in the accounts of business of both the concerns can be considered as having been made for the purposes of income tax. Added to it, it is the definite stance of the first defendant initially.
30. The first defendant initially stated that he started the business in the name and style of Savithru Silk Palace and later he started the business in the same premises with another name i.e,, Savithri Textiles, This stand has to be taken into consideration along with the documentary evidence showing the payment of rents. The undisputed fact is that the business is being carried on in two different names or concerns. What is germane for consideration in this suit is not the fact that it is one concern or two different concerns, but whether it is a single lease or two different leases. Well, when it is not the specific plea of the defendants making out a separate contract of lease, payment of rent pursuant to the said agreement separately, the circumstance of adjustment of rents in the kathas of the two different concerns cannot alone decisively determine that it is a case of two different leases. It is just possible for the purposes of income tax carrying the same business of cloth in two different names showing two different concerns and two sets of accounts, but the assessment remains to be the same. The evidence of PW3, buttressed by Ex.C1, throws any amount of light on the point that it is a business being carried on by one person as the premises has only one cash counter. Maintenance of accounts for the purpose of income tax under two different names cannot be the sole criterion for deciding the rights of the parties inter se otherwise.
31. The cumulative effect of the circumstances emanating from the record as discussed by me supra goes in favour of the conclusion that it is a case of single indivisible lease and that there has been no separate contract of lease in favour of the wife. It may be mentioned here that the defence of Lakshmi Narasimha Rao, as can be seen, from the averments made in the written statement filed resisting the suit for eviction is three pronged viz., that, it is of a permanent tenancy while taking the plea that the landlord agreed to allow him to continue in the premises as long a period as possible, that there has been an oral agreement of sale of the premises and that the civil Court has no jurisdiction inasmuch as the rent payable is not more than thousand rupees as there are two tenants paying separate rents. Ignoring the said backdrop the adjustment of rents in the katha accounts of the two concerns cannot alone be the sole and isolated circumstance to be taken into consideration. What is obvious is that the first defendant is trying to take all possible pleas so as to thwart the claim of the subsequent purchaser who is seeking eviction.
32. For the foregoing reasons, I am of the considered view that the suit property being a single premises having one entry for ingress and egress and as Lakshmi Narasimha Rao has been inducted as a tenant in the year 1969 and has been continuing since then and in the absence of any specific plea of contract of lease set up by the wife on a specific date with specific understanding of payment of rent, the payment of rent showing in two different amounts under the kathas of two concerns, prepared for income tax purposes of tenants cannot in the stand point of the view of the landlord be construed as payment of two separate amounts. But it is payment of rents in respect of one building that is the suit property for convenience sake showing it as being credited into two different accounts. There is no dispute ultimately that the total rent to be paid is Rs.1,075/-. It is apposite here to consider G.O.Ms.No.636, dated 29-12-1983 where under an exemption has been given to certain buildings from the provisions of the Rent Control Act. Clause B of the said GO is apt here to be considered. According to this clause, buildings, monthly rents of which exceed Rs.1,000/- are exempt. So the rent of the buildings will have to be taken into consideration. Here the rent that is being fetched by the suit property is Rs.1,075/-, and obviously coming within the exemption of the GO. The fact that it is paid assuming for a moment is correct in two different moities, is not the decisive factor. In any view of the matter, I am of the considered view that it is a single premises let out under a single indivisible lease. The plea set up by the defendants that they are two different" tenants cannot be accepted. As afore discussed, the Court below has been swayed away by the sole circumstance of the so-called admission on the part of the plaintiff Ramesh Kumar Jain in OS No.65 of 1995.
33. The defendants in OS No.65 of 1993 assailed the decree insofar as it pertains to the direction in regard to the payment of arrears. The first defendant being the tenant and in the absence of any agreement of sale as set up by them, payment of rent is an automatic affair. Even in the presence of agreement of sale, unless it is culminated, into a transaction of a regular sale, thereby putting an end to the jural relationship of landlord and tenant, and in the absence of any agreement to the contrary, the tenant is liable to pay the rent. Sale and lease being two different rights, there cannot be any novation of a smaller relief in the larger relief. The tenancy cannot be put an end to by the transaction of a contract of sale, in the absence of a regular conveyance of the property, in that view of the matter the decree insofar as directing the payment of arrears of rent is concerned is unassailable.
34. For the foregoing reasons, the Appeal No.104 of 1997 and the transferred Appeal No.1943 of 1998 must fail and the other transferred appeal AS No.2283 of 1999 must be allowed.
35. In the result, the appeals AS Nos.104 of 1997 and transferred AS No. 1943 of 1998 are dismissed, and AS No.2283 of 1999 is allowed, but without costs.