Andhra Pradesh High Court - Amravati
Malireddiveeraraju Died Anr vs Nadakuduti Sai Jyothi, Kkd, E.G.Dist ... on 22 October, 2021
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No.1226 of 2017
JUDGMENT:
The respondents in A.S.No.7 of 2012 on the file of the Court of the learned II Additional Senior Civil Judge, Kakinada are the appellants.
2. The 1st appellant is no more and the 2nd appellant was brought on record as his Legal Representative during pendency of the appeal before the first appellate Court. The respondents were the respondents in the above appeal.
3. The 1st respondent initially laid a suit for eviction against the deceased 1st appellant and the 2nd respondent in O.S.No.269 of 2003 on the file of the Court of the learned I Additional Junior Civil Judge, Kakinada. During pendency of this suit, the 2nd respondent was transposed as the 2nd plaintiff.
4. The case of the respondents is that they purchased the plaint schedule property from rightful owners under a registered sale deed dated 06.02.2002 and by the date of this sale, the deceased 1st appellant was in occupation of this property as tenant. This tenancy according to them was attorned in their favour and the agreed rent then was Rs.1500/- per month. Stating that the deceased 1st appellant failed to deliver possession of this property as agreed upon by 31.03.2002, to enable them to use this premises for their personal use and occupation and that the deceased 1st appellant failed to pay the rents as agreed upon, who went on making structural alterations to this property, they got issued notices on 07.03.2002 and on 06.03.2002 separately terminating his tenancy with MVR,J S.A.No.1226 of 2017 2 effect from 01.04.2002. On such basis, they laid the suit for eviction and also sought damages for use and occupation at the rate of Rs.3,000/- per month.
5. The deceased 1st appellant resisted the claim of the respondents mainly contending that he had purchased the plaint schedule property under an agreement for sale dated 25.09.1983 from Sri Kanchiraju Lalitha Kumari and others for a consideration of Rs.23,000/-, that he paid Rs.8,000/- on the date of entering into this agreement and later paid Rs.14,330/- on different dates. Thus, the deceased 1st appellant claimed that he was put in possession of this property in part performance of this contract and that he was always ready and willing to perform his part of this contract as well as to obtain a sale deed since he had paid the entire sale consideration. He denied the alleged termination of his tenancy by the respondents by issuing legal notices and that the sale deed claimed by the respondents was brought into existence by them in collusion with Sri K.Balasubrahmanyam and others to defeat his rights under the aforesaid agreement for sale. Thus, he questioned the maintainability of the suit for eviction and also on the ground that the civil Court has no jurisdiction to entertain the suit against him since the Rent Control Act is applicable as per the claim of the respondents.
6. Basing on the pleadings, the trail Court settled the following issues:
"1. Whether the plaintiffs are entitled for eviction of the 1st defendant from the plaint schedule property?
2. Whether the plaintiffs are entitled for delivery of vacant possession of the plaint schedule property?
3. To what relief?"
MVR,J S.A.No.1226 of 2017 3
7. The 1st respondent examined herself as P.W.1. The husband of the 2nd respondent was examined as P.W.3 and one of the vendors of these respondents under the original of Ex.A1 sale deed was examined as P.W.2, while the respondents relied on Ex.A1 to Ex.A13 in support of their contention. The deceased 1st appellant examined himself as D.W.1 while relying on the testimony of D.W.2 to D.W.4 as well as Ex.B1 to B13 in support of his contention.
8. On the material and evidence, the learned trial Judge rejected the defence of the appellants disbelieving the agreement for sale dated 25.09.1983 and holding that the tenancy was terminated, directed his eviction from the plaint schedule property by the decree and judgment dated 02.07.2010.
9. Against this decree and judgment of the learned I Additional Junior Civil Judge, Kakinada, A.S.No.7 of 2012 preferred by the deceased 1st appellant on the file of the Court of the learned II Additional Senior Civil Judge was dismissed by the decree and judgment dated 28.08.2017 confirming the same.
10. In these circumstances, this second appeal is presented.
11. Heard Sri E.V.V.S.Ravi Kumar, learned counsel for the appellants and Sri S.Subba Reddy, learned counsel for the respondents.
12. This second appeal was admitted on 06.08.2019 on the following substantial questions of law:
"1. Whether non-filing of the suit basing Ex.B1 by the appellant herein disentitles him from seeking protection under Section 53-A of the Transfer of Property Act, when he paid the entire consideration to the previous landlord?
MVR,J S.A.No.1226 of 2017 4
2. Whether the plaintiffs are entitled to relief of eviction having knowledge about the execution of Ex.B1 and the nature of possession of the appellant herein over the schedule property and failed to discharge the burden that they are bona fide purchasers?
3. Whether mere denial of the execution of Ex.B1 is sufficient to disprove the same though P.W.2 did not deny the signature of the executants on Ex.B1?"
13. These substantial questions of law present a situation where the findings recorded by both the Courts below in relation to agreement for sale set up by the appellants dated 25.09.1983 (Ex.B1), truth and validity of the same and if possession of the deceased 1st appellant stood protected in terms of Section 53-A of the Transfer of Property Act, require consideration. Further requirement according to the learned counsel for the appellants is a serious question relation to jurisdiction of civil Court to entertain a suit for eviction against the deceased 1st appellant having regard to the claim of the respondents.
14. The property in dispute described in the plaint schedule is a Mangalore tiled house bearing new house No.16-6-22 corresponding to old house No.16-6-17 situated in Samalkot municipality in an extent of 532.64 square yards.
15. This property originally belonged to Sri Kanchiraju Balasubrahmanyam. He executed a gift deed on 13.07.1970 in favour of his wife Smt. Kanchiraju Lalitha Kumari and their two sons that included Sri Kanchiraju Venkata Satya Suryanarayana (P.W.2) and his minor brother Sri Pardhasaradhi.
16. The deceased 1st appellant was a tenant of this premises, as admitted by him since the year 1976 on a monthly rent of Rs.25/-. Whereas the respondents stated that his tenancy commenced on a MVR,J S.A.No.1226 of 2017 5 monthly rent of Rs.10/-. It is also the version of the 1st respondent as P.W.1 that he was inducted as a tenant on a monthly rent of Rs.50/-. This rent was enhanced time to time according to the respondents and by the date of the alleged termination of tenancy under Ex.A2 and Ex.A9 legal notices got issued by the respondents respectively, it was Rs.1500/-.
17. Under the original of Ex.A1 dated 06.02.2002, the respondents claimed that they purchased the plaint schedule property from P.W.2-Sri Kanchiraju Venkata Satya Surynarayana, Sri K.Pardhasaradhi, Smt. Thallapragada Venkata Ramaratnam, Smt. Nadakudhiti Kanaka Seetha and Smt. Bandha Usha Bala for valuable consideration and that they were delivered possession of this property attorning the tenancy of the deceased 1st appellant in their favour.
18. The appellants contention is based on Ex.B1 an agreement for sale alleged to have had been executed by Smt.Kanchiraju Lalitha Kumari, P.W.2-Sri Venkata Satya Suryanarayana and on behalf of his minor brother Sri Pardhasaradhi represented by their mother on 09.01.1983, agreeing to sell away this property for a consideration of Rs.23,000/-. Their further contention is that Rs.8,000/- was paid towards advance under this agreement on the date of its execution and the contents of Ex.B1 are that the balance sale consideration of Rs.15,000/-was to be paid, by means of making a deposit out of it for Rs.4,000/- in favour of the minor Sri Pardhasaradhi, while remaining Rs.11,000/- was to be paid at the time of registration to the vendors. The period of performance under this agreement as per its contents was an year therefrom.
MVR,J S.A.No.1226 of 2017 6
19. Therefore, the burden is on the appellants to establish this contract for sale under Ex.B1. The respondents have disputed this agreement for sale and the contract thereunder. Though they are the purchasers of this property under original of Ex.A1, their stand in this case is supported by their vendors in view of specific evidence of P.W.2 Sri K.Venkata Satya Suryanarayana. He is stated to be one of the executants of Ex.B1. He denied having had entered into such an agreement for sale between all the legal heirs of Smt. Lalitha Kumari including himself on one hand and the deceased appellant on the other.
20. There is evidence of D.W.1, namely the deceased 1st appellant on record in this context. It is sought to be corroborated and supported by testimony of D.W.2 Sri Malireddy Venkata Rao, one of the attestors to Ex.B1.
21. Both the Courts below disbelieved this theory in defence based on Ex.B1 for reasons, particularly basing on the statements elicited from D.W.1 in cross-examination. Further consideration was attached to the circumstances surrounding Ex.B1, stated to question its authenticity.
22. The appellants also relied on Ex.B2 to Ex.B5 and Ex.B7 to support this sale in favour of the deceased 1st appellant and also in respect of the payment of balance sale consideration.
23. This agreement under Ex.B1 stood in the name of Smt. Papayamma, wife of the deceased 1st appellant and not the 1st appellant, as stated in the written statement. However, as D.W.1, the deceased 1st appellant corrected this situation stating that this agreement stood in the name of his wife. This agreement is stated to contain the MVR,J S.A.No.1226 of 2017 7 signature of Sri Balasubrahmanyam, husband of Smt.Lalitha Kumari, as one of the attestors. When it was confronted to P.W.2 in cross- examination on behalf of the deceased 1st appellant, he did not identify the signature attributed to his father stating that his eye sight is defective. He also did not confirm the signature attributed to him in Ex.B1 when confronted in the course of cross-examination and thus his statement stood in conformity with his version in examination-in-chief, denying Ex.B1.
24. Ex.B2 is a plain paper sheet containing certain entries of alleged payments. It is difficult to make out as to whether it is relatable to Ex.B1 transaction. Nor it bears any signature as such. Similar is the status of Ex.B3 since there is nothing to indicate that whatever payments mentioned therein, were made towards the sale consideration under Ex.B1.
25. Ex.B4 is stated to be a receipt and signature therein is attributed to Smt.K.Lalitha Kumari. It is dated 12.02.1986. Its contents refer to payment of Rs.4,900/- till that day. Its contents also do not in any manner indicate that such payment is related to Ex.B1 transaction. Ex.B5 dated 24.12.1986 is stated to be another receipt in the name of Smt. K.Lalitha Kumari acknowledging receipt of Rs.2500/- from 12.02.1986 till that day.
26. As rightly observed by the Courts below, Ex.B2 commenced from 15.08.1980 and well prior to the alleged date of Ex.B1. The last entry therein dated 14.09.1993 is also prior to the date of Ex.B1. Ex.B3 has entries commencing from 05.01.1986 and its last entry is dated MVR,J S.A.No.1226 of 2017 8 25.09.1991. When these entries are considered along with the contents of Ex.B4 and Ex.B5 as well as Ex.B1, it is not possible to make out and establish that they reflected the payments made to the alleged vendors under Ex.B1 by the deceased 1st appellant nor that they were towards the balance sale consideration payable under Ex.B1.
27. The deceased 1st appellant was cross-examined in this respect on behalf of the respondents. He clearly admitted this situation in Ex.B2. He denied the suggestions that Ex.B2 to Ex.B4 did not relate to the alleged transaction covered by Ex.B1.
28. Apart from the failure of the appellants to establish these transactions, with reference to payment of balance sale consideration as claimed by them to the alleged vendors under Ex.B1, there are other circumstances that were rightly considered by the courts below with reference to his ready and willingness to perform his part of the contract under Ex.B1.
29. Admittedly, the deceased 1st appellant did not obtain any sale deed pursuant thereto. He admitted that he did not file any suit for specific performance basing on Ex.B1 agreement. He did not issue any notice to the alleged executants of Ex.B1 calling upon them to execute a regular registered sale deed within stipulated period therein. On the other hand, statements elicited from him in cross-examination reflect that he did not remember the condition to complete this transaction upon obtaining a registered sale deed within an year as stated therein. Requirement of depositing Rs.4,000/- in the bank in the name of minor Sri Pardhasaradhi admittedly was not adhered to, which fact the deceased 1st appellant MVR,J S.A.No.1226 of 2017 9 admitted in cross-examination. He further stated that he did not have any documentary proof demonstrating that he is always ready and willing to perform his part of contract obtaining a regular sale deed upon paying the balance sale consideration. He did not collect title deeds relating to this property from his alleged vendors. His attempt to collect from the Bank of India, Samalkot Branch was not successful. Smt.Kanchiraju Lalitha Kumari had already collected from this bank, though she was a guarantor to him in an agriculture loan borrowed from it. He did not demand her for delivering these title deeds.
30. The stamp paper on which the Ex.B1 is appearing admittedly is not in the name of the deceased 1st appellant. It was purchased by Sri Mallireddy Jagannadha Prasad. According to the deceased appellant, he is son of his junior paternal uncle. This circumstance is highlighted on behalf of the respondents contending that making use of an old stamp paper that was purchased on 13.06.1981, Ex.B1 was fabricated as if it was executed on 25.09.1983 by the deceased 1st appellant. It was also suggested to D.W.1 on behalf of the respondents that after exchange of notices in between himself and the respondents, he got created Ex.B1 making use available stamp paper, in the name of his close associate. However, D.W.1 denied this suggestion. These circumstances cannot as such be ignored. If at all there was such contract entered into between Smt.Lalitha Kumari and her sons on one hand and the deceased 1st appellant on the other under Ex.B1, a stamp paper could have been purchased on the same day of entering into this contract and not long prior to its date of execution.
MVR,J S.A.No.1226 of 2017 10
31. When all the above statements elicited from the deceased 1st appellant as D.W.1 in cross-examination coupled with the manner in which he tried to establish this contract as well as performance of its terms thereunder relying on Ex.B2 to Ex.B5 and Ex.B7 are considered, it is rather hard to believe that there was indeed such transaction whereby the alleged vendors had agreed to sell the plaint schedule house to the deceased 1st appellant. The reasons recorded by the learned trial Judge and the learned appellate Judge in this context rejecting Ex.B1 are unexceptional. They are based on right appreciation of the material on record including oral evidence.
32. In this backdrop, consideration of testimony of D.W.2 did not offer any strength to the contention of the appellants. Admittedly, he is a cousin of the deceased 1st appellant and thus a highly interested witness.
33. Evidence of D.W.3 and D.W.4 as rightly observed by both the Courts below did not throw any light nor making the defence acceptable. Their testimony goes to show that they were not aware of the execution of Ex.B1 nor they were parties to such transaction. Their testimony suggested that they were informed by the deceased 1st appellant of this transaction under Ex.B1 and as such they did not have any personal knowledge.
34. Thus the evidence on record with reference to proof of Ex.B1 and conduct of the deceased 1st appellant in relation to it as well as the surrounding circumstances of this alleged contract for sale, did not inspire to hold that it is a true and valid transaction. Concurrent findings of both MVR,J S.A.No.1226 of 2017 11 the Courts below are on record in this context. Therefore, in these circumstances, it is rather hard to interfere with these findings, now.
35. The assertion of the appellants basing on Ex.B1 agreement for sale to hold on to this property is in terms of Section 53-A of the Transfer of Property Act.
36. Sri E.V.V.S.Ravi Kumar, learned counsel for the appellants, in this context strongly relied on Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi (Dead) by L.Rs. And others1 contending that in the presence of Ex.B1 and admitted possession of the deceased 1st appellant, the appellants are entitled for protection in terms of Section 53-A of the Transfer of Property Act and that they cannot be dispossessed from the plaint schedule property. Therefore, the learned counsel contended that a suit for eviction in these circumstances, at the instance of the respondents, cannot lie.
37. In para-20 of this ruling it is stated:
"it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part-performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action".
38. Requirements to apply under Section 53-A of the Transfer of Property Act cannot be overlooked to apply this ratio. One of them is that the transferee must have done some act in furtherance of this contract and that he must have performed or willing to perform his part of contract. These requirements are stated in para-16 of this ruling thus: 1
. (2002) 3 Supreme Court Cases 676 MVR,J S.A.No.1226 of 2017 12 " 16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are:
(1) there must be a contract to transfer for consideration of any immovable property;
(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
(4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof;
(5) the transferee must have done some act in furtherance of the contract;
and (6) the transferee must have performed or be willing to perform his part of the contract."
39. Findings recorded by both the Courts below and the facts and circumstances as discussed above now clearly demonstrate that proof is not offered by the appellants of their ready and willingness to perform their part of the contract nor any proof is laid to the effect that something more was done in furtherance of this contract. Nor it was the situation during the lifetime of the deceased 1st appellant.
40. Therefore, Section 53-A of the Transfer of Property Act did not help the appellants in any manner to question the claim of the respondents.
41. Sri E.V.V.S.Ravi Kumar, learned counsel for the appellants, strenuously contended that the respondents are third party purchasers of the plaint schedule property during subsistence of Ex.B1 contract in favour of the deceased 1st appellant. It is further contended that when they claim that they are bona fide purchasers for value in good faith without notice of this contract between the deceased 1st appellant and the original MVR,J S.A.No.1226 of 2017 13 owners, in terms of Section 19 of the Specific Relief Act, it is for them to establish the nature of Ex.A1 sale in their favour. In support of this contention, the learned counsel for the appellants relied on R.K.Mohammed Ubaidullah and others vs. Hajee C.Abdul Wahab (D) by L.Rs.and others2. In para-14 of this ruling referring to application of Section-19 of the Specific Relief Act, it is stated thus:
"14. Section 19 of the Specific Relief Act, 1963, to the extent it is relevant, reads:
"19. Relief against parties and persons claiming under them by subsequent title.--Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c)-(e)***"
As can be seen from Sections 19(a) and (b) extracted above specific performance of a contract can be enforced against (a) either party thereto; and (b) any person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 19(b) protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception to the general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of the Penal Code emphasises due care and attention in relation to good faith. In the General Clauses Act emphasis is laid on honesty."
42. In the same context, the learned counsel for the appellants relied on Veeramalai Vanniar (died) and others v. Thadikara Vanniar and others3. This ruling is referred to in R.K.Mohammed Ubaidullah above.
2 . (2000) 6 Supreme Court Cases 402 3 . AIR 1968 Madras 383 MVR,J S.A.No.1226 of 2017 14
43. The proposition of law sought to be canvassed on behalf of the appellants basing on Section-19 of the Specific Relief Act is not disputed nor can be disputed.
44. However, application of facts to this proposition is the major requirement. It is always said that the facts if taken care of, they take care of law.
45. The default on the part of the appellants is in failing to establish their claim as a fact at the trial. Reasons are assigned supra that there is no proof of prior contract in favour of the deceased 1st appellant under Ex.B1. There is also no evidence that it was to the knowledge of the respondents, who are the purchasers under the original of Ex.A1.
46. Circumstances are referred to on behalf of the appellants from the statements elicited in cross-examination of P.W.1, namely the 1st respondent in this context. In the course of cross-examination, P.W.1 was confronted Ex.B1 to Ex.B5. She merely identified them since had seen earlier in the office of learned counsel for appellants, prior to the institution of the suit and thus they were marked through this witness. These statements of P.W.1 are not in the nature of admission of these documents. Further cross-examination of this witness on behalf of the appellants itself reflected this situation, when she clearly stated that the deceased 1st appellant created Ex.B1 to Ex.B5.
47. One of the circumstances relied on by the learned counsel for the appellants to question Ex.A1 transaction is a part of its contents. Last two lines in page-4 of Ex.A1 are scored out. It is very difficult to decipher these contents. However, the learned counsel for the appellants MVR,J S.A.No.1226 of 2017 15 contended that these two lines which remained obliterated referred to Ex.B1 agreement in favour of the deceased appellant and purposely they were scored out. Suggestion to P.W.1 on behalf of the deceased 1st appellant at the trial to this effect, that was denied by her.
48. When P.W.2 was confronted this portion of Ex.A1, he too stated that he cannot identify this correction on account of his poor eye sight.
49. The learned counsel for the appellants contented that these statements of P.W.1 and P.W.2 as well as the contents of Ex.A1 are deceptive and purposely the witnesses examined on behalf of the respondents did not confirm contents of such portion in page-4 of Ex.A1 and its contents. When the evidence on record remained as such, it is rather difficult to accept this contention. It is also difficult to hold that this scored out portion in page-4 of Ex.A1 is with reference to Ex.B1 agreement for sale in favour of the deceased appellant.
50. One of the contentions on behalf of the appellants is as to close relationship of the 1st respondent and Smt. Kanaka Seetha, one of the executants of the sale deed under the original of Ex.A1. Smt. Kanaka Seetha is the mother of P.W.1. Circumstances are also sought to be pointed out as to bringing out original of Ex.A1, that P.W.1 did not have financial capacity to pay her share of sale consideration. However, evidence is not forthcoming to this effect nor the statements of P.W.1 are throwing light in this direction.
51. Sri E.V.V.S.Ravi Kumar, learned counsel for the appellants, strenuously contended that the suit as such could not have been MVR,J S.A.No.1226 of 2017 16 maintained by the respondents particularly having regard to the rent which the deceased 1st appellant was paying initially, and that there is no proof that on the date of the suit, the rent was Rs.1500/-. Reliance is sought to be placed in this context on the effect of G.O.Ms.No. 636, General Administration (Accommodation-A) Department, dated 29-12-1983 issued in terms of Section 26 of A.P. (Buildings, Lease, Rent and Eviction) Control Act and having regard to Section 32 of the said Act. Strong reliance is placed by the learned counsel for the appellants upon the contents of Ex.A2 and Ex.A9-legal notices issued separately on behalf of both the respondents claiming to terminate the tenancy of the deceased 1st appellant. This question is raised for the first time in this second appeal, since it is not the basis for its admission.
52. As rightly contended by Sri S.Subba Reddy, learned counsel for the respondents, the sale covered by Ex.A1 was in favour of respondents 1 and 2, of the plaint schedule property. They have specifically set up a claim that the deceased 1st appellant was tenant at the time of this sale and that his tenancy was attorned in their favour through this sale deed by their vendors. There is also recital to that effect in this sale deed.
53. As seen from Ex.A2 legal notice issued on behalf of the 1st respondent she claimed her share of Rs.750/- out of the total rent payable by the deceased 1st respondent while seeking him to vacate this premises by 31.03.2002 as promised. Tenancy by Ex.A1 was terminated with effect from 01.04.2002.
54. Ex.A9 is another legal notice issued on behalf of the 2nd respondent setting out similar claim as of the 1st respondent for payment MVR,J S.A.No.1226 of 2017 17 of her share of Rs.750/- out of the total rent payable by the deceased 1st appellant calling upon to vacate as promised on or before 31.03.2002. Tenancy was terminated with effect from 01.04.2002 by Ex.A9.
55. Though the 2nd respondent was shown as the 2nd defendant in the plaint initially, she was transposed as the 2nd plaintiff in the plaint during the course of trial.
56. A common cause of action for eviction of the deceased 1st appellant was sought by the 1st respondent when the plaint was initially presented. It is further to be noted that the suit was valued basing on the monthly rent at Rs.1500/- in terms of Section 40(2) of ACF & SV Act and Court fee was also paid thereon. Therefore, the cause so laid by the 1st respondent did enure to the benefit of the 2nd respondent. Her transposition as the 2nd plaintiff has cleared the situation. Even otherwise, a co-owner or co-sharer of a property is entitled to lay suit for eviction for benefit of all of them. This is the proposition of law canvassed by Sri S.Subba Reddy, learned counsel for the respondents relying on Kasthuri Radhakrishnan and others v. M. Chinniyan and another4. In para- 29 of this ruling in this respect, it is stated:
"29. Likewise, so far as issue pertaining to joinder of all co-owners in eviction petition filed against the tenant under the rent laws is concerned, the same also remains no more res integra and stands settled by several decisions of this Court. In Dhannalal v. Kalawatibai [Dhannalal v. Kalawatibai, (2002) 6 SCC 16] , this Court took note of all case laws on the subject and explained the legal position governing the issue. R.C. Lahoti, J. (as His Lordship then was) speaking for the Bench held in para 16 as under: (SCC pp. 27-28) "16. It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath [Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184] , Kanta Goel v. B.P. Pathak [Kanta Goel v. B.P. Pathak, (1977) 2 SCC 4 . (2016) 3 SCC 296 MVR,J S.A.No.1226 of 2017 18 814] and Pal Singh v. Sunder Singh [Pal Singh v. Sunder Singh, (1989) 1 SCC 444] that one of the co-owners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other co- owners were not joined as parties to the suit. When the property forming the subject-matter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property so long as the property has not been partitioned........."
57. Sri V.Bhaskar Rao, J in P. Kanti & Ors. vs. Boddu Paidanna @ Rambabu5 similarly held that a claim by a co-owner or co-sharer against a third party for eviction is maintainable.
58. In the given facts and circumstances, when the law is settled in this context as urged by Sri S.Subba Reddy, learned counsel for the respondents, any amount of contentions advanced on behalf of the appellants, is of no avail. The suit as framed and filed is perfectly maintainable.
59. Thus conspectus is clear that it is a dispute more based on facts than law. It is not a case where the defence of the appellants stood established basing on Ex.B1 nor is it possible to hold that the respondents being purchasers of the plaint schedule property under the original of Ex.A1 sale deed failed to make out their bona fides in entering such transaction. Nor is there any proof that they had prior notice of Ex.A1- agreement for sale in favour of the deceased 1st appellant in respect of the plaint schedule property. Therefore, the burden did not remain on them to discharge in terms of Section 19 of the Specific Relief Act. When the contract under Ex.B1 itself is not established, there is no gainsaying 5 . (1999(4) ALD 318) MVR,J S.A.No.1226 of 2017 19 that the respondents should establish that they are bona fide purchasers of the plaint schedule property without prior notice of Ex.B1 agreement.
60. Further the contention of the appellants that civil Court has no jurisdiction to entertain a suit of this nature in view of the nature of presentation of the claim by the respondents and that it is only the Court under A.P.Buildings (Lease, Rent and Eviction) Control Act has jurisdiction to entertain this claim, cannot stand.
61. In consideration of the fact situation obtaining in terms of Section 100 CPC, this second appeal cannot stand. Adverting to principles considered by the Hon'ble Supreme Court in Nazir Mohamed vs. J.Kamala and others6, Sri S.Subba Reddy, learned counsel for the respondents, contended that this Court in the presence of concurrent findings recorded by both the Courts below need not reconsider this matter. In the above ruling, in Para-37 it is stated as under:
"37. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(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.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of 6 . 2020 SCC OnLine SC 676 MVR,J S.A.No.1226 of 2017 20 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.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
62. Therefore, this second appeal as such cannot lie, since the substantial questions of law raised by the appellants did not remain for consideration and determination nor they amounted to such questions to qualify being substantial questions of law requiring determination now. Hence, this second appeal has to be dismissed.
63. In the result, the second appeal is dismissed. The decrees and judgments of both the Courts below stand confirmed. The appellant is granted time till 1st January, 2022 to vacate the plaint schedule property. Otherwise, the respondents are at liberty to approach the trial Court through process of execution to get the 2nd appellant evicted therefrom. In the circumstances, there shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, stand closed. Interim Orders, if any, stand vacated.
_________________________ JUSTICE M.VENKATA RAMANNA Dt:20.10.2021 RR MVR,J S.A.No.1226 of 2017 21 MVR,J S.A.No.1226 of 2017 22 HON'BLE SRI JUSTICE M.VENKATA RAMANA SECOND APPEAL No.1226 Of 2017 Dt:20.10.2021 RR