Andhra HC (Pre-Telangana)
Hanumanth Vajhula Jagannadha Sastry vs Vajhula Annapurna Rajeswaramma And ... on 9 December, 2003
Equivalent citations: 2004(4)ALD282, 2004(5)ALT348
JUDGMENT B.S.A. Swamy, J.
1. The second defendant in O.S. Nos. 5/1976, 359/ 1979 and 267/1981 filed by Lingala Venkataratnamma and the second defendant in Interpleader Suit in O.S. No. 357/ 1980 filed by Doddi Buli Veerraju, filed these Second Appeals.
2. While late Lingala Venkataratnamma filed three suits referred above, for recovery of the rents over the suit schedule properties from Doddi Buli Veerraju, the tenant over the lands, claiming that they are the owners of the land. He filed Interpleader Suit in O.S.No. 357/1980 seeking a decision as to which of the defendants in his suit, i.e., late Lingala Venkataratnamma and Rajeswaramma on one side and Hanumanthavajhula Jagannadha Sastry, the appellant herein, on the other side are the real owners and to whom he has to pay the rents. During the pendency of the suit, Lingala Venkataratnamma died and her daughter Vajhula Annapurna Rajeswari (hereinafter referred to as 'Rajeswaramma') was brought on record as second plaintiff in all the three suits filed by Lingala Venkataratnamma and as third defendant in the Interpleader Suit filed by Doddi Buli Veerraju,
3. The case of the plaintiffs in O.S. No. 5/1976 and batch was that Mr. Doddi Buli Veerraju-tenant took the suit schedule properties on lease from Godavari Suryakanthamma and he paid rents to her till 1972-73, Thereafter he failed to pay rent due by 15.1.1974 and committed acts of waste. It is also her case that Suryakanthamma filed A.T.P.No. 38/1974 before the Tahsildar, Peddapuram for eviction of the tenant from the suit lands. During the pendency of the Tenancy Petition, Suryakanthamma executed a Will-Ex. B.17, on 18.12.1974 bequeathing her properties both movable and immovable, including the suit schedule land and arrears of rent due from the tenant to the plaintiff and passed away on 29.4.1975.
4. The tenant filed a written statement stating that the suit is not maintainable. He admitted that late Suryakanthamma leased out two plots of land but he is not aware of the Survey Numbers but the extent of land tallies. He also stated that in 1973, Defendant No. 2 took possession of the lands through Court in execution of the decree in O.S. No. 22/1971 on the file of I Additional Sub-Court, Kakinada, to which late Godavari Suryakanthamma and plaintiff were parties and at the time of delivery of possession of the lands to Jagannadha Sastry, the tenancy was attorned to him. Hence, it is false to state that subsequent to 7.2.1973, that he is continuing as tenant of late Suryakanthamma. He is continuing in the land as tenant of the rightful owner, Jagannadha Sastry.
5. In fact, in the exchange of notices, he admitted that he has prepared to pay rent to the rightful owner and requested Suryakanthamma and Jagannadha Sastry to show the title to the property. On that, while Jagannadha Sastry filed O.S. No. 654/1974, late Suryakanthamma filed the present suits. He also stated that since both Jagannadha Sastry and Suryakanthamma filed Tenancy Petitions against him, it is not possible for him to pay rents to both of them. Hence, he is depositing the rent in the bank.
6. It is true that in the legal notice dated 26.12.1973, late Suryakanthamma asserted that the lands in question are not subject-matter of O.S.No. 22/1971. But the tenant asserted that the Amin gave symbolic delivery of this land also to Jagannadha Sastry and he attorned the tenancy to him. Suryakanthamma has to take proper steps to take redelivery of the land, if the delivery is wrong. Similar was the contention in the other two suits.
7. Defendant No. 2, i.e., Jagannadha Sastry in his written statement stated that the properties originally belonged to his adoptive father late Hanumanthavajhula Veera Raghava Sastry and he succeeded to his estates. He filed O.S. No. 22/1971 on the file of Sub-Court, Kakinada against late Suryakanthamma and Ventaka Ratnamma for recovery of Item Nos. 1 to 9 of plaint "A" schedule property and half of the house property in plaint 'B' schedule property in O.S. No. 41/1950, by stating that he was dispossessed from the lands in 1967 and the suit was decreed on 31.10.1972. Thereafter, he filed E.P. No. 120/1973 and the Amin gave symbolic delivery of possession of properties to him and he permitted the tenant to be in possession of the property up to 15.1.1974 on payment of 60 bags of paddy and to vacate the land thereafter. In fact, late Suryakanthamma and Venkataratnamma filed E.A. No. 761/ 1973 in E.P. No. 120/1973 for redelivery of some of the properties said to have been not covered by the decree and the same was dismissed. The orders in E.A. became final and the same operates as res judicata.
8. Mr. Jagannadha Sastry further contended that since the tenant attorned himself as tenant to him, he is estopped from setting up title in favour of the plaintiffs in the suits. He also stated that O.S. No. 654/1974 on the file of Munsif Court, Peddapuram for recovery of rents from the tenant for the year 1973-74 was decreed on 15.12.1979, and the present suits are filed to protract the litigation. On these pleadings, the Trial Court having framed issues separately in each suit, clubbed all the suits for trial and recorded evidence in the suit O.S. No. 357/1980 in the Interpleader Suit filed by the tenant.
9. While the tenant got himself examined as PW.1 and marked Exs.A.1 to 23 as well as Exs.B.1 to 55, Jagannadha Sastry, the second defendant in all these suits got himself examined as DW.1 and marked Exs.B.1 to 6 on his behalf in these suits. While DWs.2 and 4 were examined to speak on the Will executed by late Suryakanthamma in 1974, wherein life interest was given to Venkataratnamma and vested reminder to her daughter Rajeswaramma. DW.3 - husband of Rajeswaramma was examined to prove the case of the plaintiffs. The rest of the documents were marked on their behalf.
10. On appreciation of the oral and documentary evidence, the Trial Court held that the lands covered by the suits filed by late Venkataratnamma and the suit schedule properties in O.S. No. 41/1950 are not one and the same and it is further held that the Items 1 and 2 in 'A' schedule in O.S. No. 22/1971 was not the property of the present suit. Hence, it cannot be said that the Amin delivered that property to DW.1. So, I feel that DW.1 has purposefully suppressed those delivery receipts issued by him to the Amin at the time of delivery. The Court also held that this Interpleader Suit filed by the tenant is maintainable since there is a title dispute between late Venkataratnamma and Jagannadha Sastry.
11. Aggrieved by the said judgment and decree, while Jagannadha Sastry filed A.S. No. 29/1989 against O.S. No. 5/1976, A.S. No. 30/1989 against O.S. No. 357/1980 and A.S. No. 31/1989 against O.S. No. 359/1979, the tenant filed cross objections in A.S. Nos. 29/ 1989, 30/1989 and 31/1989. All the appeals were disposed of by a common judgment dated 8.8.1995 by confirming the judgment of the Trial Court. Hence, Jagannadha Sastry preferred the present second appeals.
12. Second Appeal No. 170/1996 against A.S. No. 29/1989 arose out of O.S. No. 5/ 1976, Second Appeal No. 98/1996 against A.S. No. 30/1989 arose out of O.S. No. 357/ 1980, Second Appeal No. 166/1996 against A.S. No. 31/1989 arose out of O.S. No. 359/ 1979 and Second Appeal No. 204/1996 against A.S. No. 34/1989 arose out of O.S. No. 267/1981.
13. In all these appeals, though Rajeswaramma, the plaintiff in the suits was shown as respondent, and notices were served, she did not choose to appear before this Court. She was set ex parte, Mr. G. Krishna Murthy, Advocate represented the tenant,
14. The questions that arise for consideration in these Second Appeals would be:
1. Whether the suits filed by late Venkataratnamma for recovery of rents from the tenant are maintainable in law?
2. Whether the action of the tenant in filing Interpleader Suit is a bona fide one?
15. Though voluminous documentary evidence was marked to prove the case of the plaintiffs, I have no hesitation in holding that both the Courts below missed the crucial issue in decreeing the suits,
16. It is not in dispute that one Hanumanthavajjula Veera Raghava Sastri is the owner of all these properties in question. He had four daughters by name Gopalajyosula Annapurnamma, Godavari Satyanarayanamma, Godavari Suryakanthamma and Lingala Venkataratnamma. After his death, his wife Subbamma adopted the appellant herein Mr. Jagannadha Sastri. Gopalajyosula Annapurnamma died long back. While Satyanarayanamma had one son by name Bangaraiah, Suryakanthamma had no issues and she adopted Godavari Veeraraghava Sastry. Lingala Venkataratnamma had one daughter by name Vajhyula Annapurna Rajeswari. In 1950, Mr. Godavari Veera Raghava Sastri filed O.S. No. 41/1950 against Subbamma-wife of the original landowner, his two aunts i.e., Suryakanthamma and Lingala Venkataratnamma and the appellant herein, seeking declaration of title and recovery of possession of Items 1 to 11 of plaint 'A' schedule and plaint 'B' schedule house. The said suit was partly decreed on 29.10.1952, whereunder his title to the properties for Items 10 and 11 and half of the share in the house of 'B' schedule was declared. The said judgment was marked in this judgment as Ex.B-32.
17. In 1971, the appellant herein filed O.S. No. 22/1971 for recovery of Items 1 to 9 in plaint 'A' schedule property and half portion in the plaint 'B' schedule property in O.S. No. 41/1950 against Suryakanthamma and Venkataratnamma by stating that he was dispossessed from the properties in 1967. The said suit was decreed on 31.10.1972 and the same was marked as Ex.B-2. Thereafter, the appellant herein filed E.P. No. 120/73 and in the execution proceedings, the Amin took symbolic possession of the suit schedule properties under Exs.B-4 and 5 dated 5.7.1973 and 21.7.1973. Thereafter, both late Suryakanthamma and Venkataratnamma filed E.A.No. 761/1973 stating that certain movable properties which are not covered by the decree in O.S.No. 22/1971 were taken possession in execution of the decree and they may be returned. The said application was dismissed on 30.12.1977. E.A. was marked as Ex.B.10 and the order was marked as Ex.B.11. Under Exs.B.56 and 57, the tenant attorned the tenancy in favour of the appellant herein. Again there is a dispute whether the tenancy was attorned or he was given licence to be in possession of the property till the end of agricultural year.
18. While the E.A. No. 761/1973 is pending on behalf of late Suryakanthamma, a legal notice was, issued on 4.10.1973 claiming rents for the suit schedule properties by stating that he was inducted into possession as a tenant in the year 1967. Legal notice-dated 16.12.1973 marked as Ex.A.2 was given by the tenant to both Suryakanthamma and the appellant herein. The tenant admitted that he attorned the tenancy in favour of the appellant herein. It is stated that the tenant is willing to pay the rent to the decree holder if they show the title to the land, otherwise he will deposit the rent in a bank. Stating so, he asked both the parties to show the decree copy, so that his client will pay the rents to the decree holder to avoid trouble to him in future. In reply to this notice, late Suryakanthamma got issued another legal notice dated 26.12.1973 marked as Ex.A.3 stating that his client inherited the properties under a Will dated 29.10.1937 said to have been executed by her eldest sister, Gopala Jyosula Annapurnamma, Ex.B.23 and as such the attornment of tenancy by the tenant in favour of the appellant herein is not a valid one. The appellant in his reply notice-Ex.A.4 dated 23.1.1974, apart from reiterating the above possession clearly stated that the present notice issued by Suryakanthamma is the manipulation of the tenant to avoid payment of the amount due to him. He also stated that even the allegations in the notice are true, having attorned the tenancy in his favour, the tenant is estopped from asking him to prove his title to the property. He also stated that Suryakanthamma and Venkataratnamma filed pauper appeal in the High Court alleging that the property referred to in the notice of the tenant is in his possession, as it is delivered to him through Court and having no property whatsoever except that wearing the apparel etc.
19. The tenant again got issued another legal notice Ex.A.5 stating that he has no objection to deposit the rent to the credit of O.S. No. 22/1971 or else, execute proceedings so that the successful party may withdraw the amount after they come to an understanding. But, in the last paragraph he stated that rent is lying in the deposit in bank. These two statements seemed to run counter to each other and they are inconsistent. Be that as it may in paragraph 9, his specific case was that he executed a lease deed in favour of the appellant herein.
20. In fact, in O.S. No. 654/1974 filed by the appellant herein for recovery of rents, an additional issue was framed on 27.10.1979 to the effect that vide letter dated 21.1.1973 was taken from the defendant as pleaded in paragraph 3 of the written statement. The said letter was marked as Ex.A.1 in that suit. Though the schedule property was not mentioned in Ex.A.1, the defendant therein, that is, the tenant categorically admitted in his evidence that Ex.A.1 letter relates only to the land which originally took on lease from late Suryakanthamma and which the appellant got delivery of the same through Court. In those circumstances, the Court recorded a finding, "This clearly goes to establish that the defendant was aware of the fact that the plaintiff obtaining A.1 from him and in the written statement, he did not plead that he was not aware of the contents of Ex.A.1".
21. Ultimately at the end of para 5 in page 25, the Court held, "This clearly goes to establish the truth of the defendant's contention that Ex.A.1 was taken from him only as a lease deed, so it can safely be taken that the defendant attorned himself to the petitioner as a tenant of the schedule property."
22. Again in Page 36 of the judgment, it was observed, "Having noted the Court observed that the efforts of the tenant to implead Lingala Venkataratnamma did not yield fruitful results and the application was dismissed, observed that the tenant in one breath contends that he agreed to pay the rents in respect of lease hold lands upto 15.1.1974 and in another breath he contends that he does not know whether the land belongs to plaintiff are not." Ultimately, the Court held; "I have no hesitation to find that the defendant failed to succeed in showing A.1-letter came into existence in the circumstances pleaded in his written statement."
23. With regard to the apprehension of the tenant, that he may be forced to pay rent to Venkataratnamma since she also filed suits. The learned Judge observed to safeguard the interests of the defendant, directed the plaintiffs to furnish third party security for the suit amount before he takes the amount from the deposit or receives payment.
24. Though the amounts payable under this suit was paid by the tenant, I understand that the tenant opened an account in his own name in the bank without obtaining any orders from the Court either in O.S. No. 654/1974 filed by the appellant or in any of the present suits filed by late Lingala Venkataratnamma or in the tenancy petitions filed by both the parties and started depositing the amounts in the bank. The passbooks were marked as Exs.A.17 to A. 19. This shows the conduct of the tenant in the light of the assertion made by the appellant that he engineered the legal notice from Suryakanthamma, who filed pauper appeal in the High Court by categorically stating that except apparel, she is not having any other landed property and the suit schedule property was given delivery to the appellant in execution of the decree in O.S. No. 22/1971. From the record it is seen that the son of late Satyanarayanamma filed O.S. No. 41/1950 against the co-owners for declaration of title and possession of this properties mentioned therein. Nowhere, a mention was made about the existence of the Will said to have been executed by late Annapurnamma.
25. In fact, late Suryakanthamma filed another suit O.S. No. 82/1970 on the file of the District Munsif Court, Peddapuram, for declaration of her title to the half share in the plaint schedule property and for partition of the same into two equal shares and for possession of the same against Veeraraghava Sastry, i.e., the adopted son of late Satyanarayanamma, and others and the said suit was dismissed on 31.1.1975. The same was marked as Ex.B.12.
26. At no point of time, the Will-Ex.B.23 has seen the light of the day. For the first time, late Suryakanthamma mentioned that she got the property under Ex.B. 23 dated 29.10.1937. In the legal notice Ex.A.3 dated 26.12.1973, a mention was made that she got the property under a Will executed by late Annapurnamma, i.e., after O.S.No. 22/1971 was decreed and in fact possession was also delivered to the appellant. In fact, the existence of notice was made known at the time when E.A. No. 761/1973 filed by these two individuals for return of movables that were not covered by the decree and that ware taken in the execution. The said application was also dismissed on 30.12.1977.
27. If the Suryakanthamma or Lingala Venkataratnamma are tracing their title to Ex.B.23 of the year 1937 and when the property was delivered in execution proceedings as admitted by the tenant, they would have filed a suit for declaration of title to the property and recovery of the possession from the appellant herein or whoever is in possession of the property, or filed an application under Section 47 of Code of Civil Procedure before the executing Court for redelivery of the land that was not covered by the decree.
28. Three years thereafter, they filed O.S. No. 5/1976 for recovery of arrears of rent for an extent of Ac.4.55 cents in R.S. No. 755/1 and O.S. No. 357/1980 for realisation of rents for an extent of Ac.0.06 cents in R.S. No. 753/3 and O.S. No. 267/ 1981 for recovery of rents for an extent of Ac.1.21 cents in R.S. No. 749, in all Ac.5.82 cents.
29. By the time these suits came up for trial, O.S. No. 654/1974, the earlier suit filed by the appellant for recovery of rents for the suit schedule lands for the year 1973-74 was decreed on 15.11.1979 and the same was marked Ex.A.8 and the judgment has become final. When that judgment has become final, it is not known how both the Courts could brush aside that judgment, and record a finding which runs counter to the earlier judgment.
30. Further, these suits are not the suits filed by for declaration of title and recovery of the possession of the properties. The suits are filed for recovery of rents from the tenant, and I hold that the judgment in O.S. No. 654/1974 became final and it operates res judicata. In the light of the said judgment, the suits filed by the late Lingala Venkataratnamma, i.e., O.S. Nos. 5/1976, 359/1979 and 267 /1981 are hit by the principle of res judicata and they are not maintainable in law.
31. In fact, the specific case of the appellant is that it is the tenant who manipulated the issuance of legal notice on behalf of the late Suryakanthamma. The conduct of the tenant in not paying the rent to the appellant and depositing the rent in his own name in bank without any authority whatsoever, after delivery of possession of land and after the Court held that he attorned the tenancy in favour of the appellant in O.S. No. 654/1974, proves that he is the man behind this litigation to avoid payment of rents due to the appellant. The absence of the plaintiffs in these suits before this Court further fortifies the contention of the appellant that the tenant is the kingpin in this litigation and the fact that the tenant by filing Interpleader Suit could successfully avoid payment of rents for nearly 28 years.
32. In the light of the foregoing discussion, I hold that the judgment and decree of the trial Court as confirmed by the appellate Court in O.S. Nos. 5/76, 359/ 1979 and 267/1981 are not sustainable in law and the same is set aside. Accordingly, these suits filed by the late Lingala Venkataratnamma are dismissed.
33. Nextly, under Section 47 of Code of Civil Procedure, all questions arising between the parties to the suit, in which decree was passed on their representatives and relating to the execution discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. The scope of Section 47 of Code of Civil Procedure was considered by the Honourable Supreme Court in Merla Ramanna v. Nallaparaju and Ors., . Having surveyed the case law, their Lordships of the Supreme Court by relying on the judgment of the Privy Council in J. Marret v. Md. K. Shirazi and Sons, AIR 1930 PC 86 (A), held:
"It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under, Section 47 of Civil Procedure Code and not in a separate suit."
34. Hence, on this ground also, the suits filed by late Lingala Venkataratnamma are not maintainable.
35. In Gopalkrishna Kammath v. R. Bhaskara Rao, , a learned Judge of the Kerala High Court held that:
"Questions as to excess execution where property not included in or covered by the decree is delivered in execution of the decree, there arises a situation which, in law is called 'action in excess of the decree'. In such cases the proper remedy for the judgment debtor to recover the property delivered in excess of the decree is by an application under Section 47 of Code of Civil Procedure and not by a separate suit."
36. Second Appeal No. 98/1996 arises out of the Interpleader Suit in O.S. No. 357/ 1980 filed by the tenant, Section 88 of the Code of Civil Procedure read with Order 35, Rule 5 deal with the filing of Interpleader suit. It is useful to extract the same:
"Where two or more persons claim adversely to one another the game another the same debt, sum of money or other property, movable or immovable, from another person, who claims no interest therein other man for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of Interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself: Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of Interpleader shall be instituted."
Under Order 35, Rule 5:
"Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords."
37. From this, it is evident that no tenant can file an Interpleader Suit to compel his landlord to interplead with any person other than persons claiming through his landlord.
38. Admittedly, in this case, the specific case of the tenant in the legal notice-Ex.A2 is that he attorned the tenancy in favour of the appellant herein. In fact, in O.S. No. 654/1974, the learned Principal District Munsif, Peddapuram specifically recorded a finding that the tenant attorned the tenancy in favour of the appellant. The judgment was delivered on 15.11.1979 and the same became final. Likewise, in the written statement in the suits filed by late Lingala Venkataratnamma, the specific plea of the tenant is that after 7.2.1973, the day on which he attorned the tenancy in favour of the appellant, the relationship of the landlord and tenant between late Suryakanthamma and himself extinguished in the following words: "Thus it is false to state that subsequent to 7.2.1973, this defendant is continuing as tenant of Godavari Suryakantamma. He is continuing in the land as tenant of the rightful owner of H.J. Sastrty."
39. Having taken such a stand, it is not known how he can file Interpleader suit compelling the appellant to interplead with the plaintiffs, who are not claiming any interest through H. J. Sastry in the suits.
40. In fact, the judgment cited by Mr. G. Krishna Murthy, learned Counsel appearing for the tenant supports the case of Adyanath Ghatak v. Krishna Prasad Singh and Anr., AIR (36) 1949 PC 124, wherein, it was held that:
"a symbolic delivery of possession of property found to be in occupation of a tenant or the judgment debtor effectively terminates both the judgment debtor and the tenant"
41. The effect of Rule 5 of Order 35 of Code of Civil Procedure was considered by Bombay High Court in case of Yeshwant Bhikaji Vilankar v. Sadashiv Govind Arekar and Anr., AIR 1940 Bom. 414. The judgment cited by Mr. G. Krishna Murthy, Counsel for the tenant, also runs against the interests of his clients. Their Lordships ruled that an Interpleader Suit is only maintainable if the landlord subsequent to the letting has done some act, whereby his right to recover the rent is entangled, likewise, their Lordships held that:
"A tenant is not permitted to deny his lessor's title at the commencement of the tenancy, and therefore in order that an Interpleader Suit may lie, the claim of the party other than the landlord must be consistent with the title of the landlord at the commencement of the tenancy in question."
42. The facts of that case were that the plaintiff in the suit has taken some land belonging to Defendant No. 2 on an oral lease on 1st November, 1927 and he paid rent to him in accordance with the lease up to July, 1935. He then received notices both from Defendant Nos. 1 and 2, Defendant No. 2, somewhat superfluously informed his tenant that he was not to pay the rent to Defendant No. 1. Defendant No. 1 issued a notice to the plaintiff that the land belongs to him and demanded the rent to be paid to him. At the same time, Defendant No. 2 asserted that the rent is payable to him. On the pleadings, the dispute that arose was whether Defendant No. 1 or Defendant No. 2 is the owner of the property, and whether the plaintiff is the tenant of the Defendant No. 1 or Defendant No. 2. Nothing in the pleading would seem to justify the conclusion that Defendant No. 1 claims under Defendant No. 2, who carved the plaintiff is his landlord. On the contrary, the claims would seem to be adverse to one another and inconsistent. Dealing with the contention of the Defendant No. 1 that the plaintiff and Defendant No. 2 are acting in collusion. Their Lordships observed:
"However, we do not think that the plaintiff can get out of the difficulty arising from Rule 5 in this way. Section 116, Evidence Act, seems to be the answer to this argument also. That rule, as I have said, prevents a tenant from denying the title of the landlord at the commencement of the tenancy. Therefore, he cannot bring a suit in which a claim inconsistent with his landlord's title at that time is to be litigated."
43. From the above, it is crystal clear that the tenant is forbidden to bring Interpleader Suit to compel his landlord to interplead with any person. Hence, on this ground itself, the suit filed by the tenant is not maintainable in law.
44. As I have already observed that, this is all the innovation of the tenant to avoid payment of rent to the appellant. Hence, the action of the appellant-tenant in filing an Interpleader Suit, more so in 1980, i.e., after the judgment in O.S. No. 654/1974 dated 15.11.1979 became final, wherein, the Court clearly held that he attorned the tenancy in favour of the appellant is not a bona fide exercise and it is a mala fide one, intending to deprive the appellant from receiving the rents due to him from the lands under his occupation.
45. Hence, I hold that the suit filed in O.S. No. 357/1980 is hit by Order 35 Rule 5 of Code of Civil Procedure and the same is not maintainable.
46. Accordingly, the judgment and decree of the Trial Court as confirmed by the Appellate Court in O.S. No. 357/1980 are set aside and the suit is dismissed as not maintainable in law. It is now on record that the tenant without paying the rents started depositing rents in the bank in his own name and the passbooks for the accounts are marked as Exs.A.17 to 19, relating to accounts.
47. In the light of the judgment in Second Appeal Nos. 98, 166 and 170/1996, the appellant alone is entitled to receive the rents.
48. Accordingly, the appellant is permitted to withdraw the amounts deposited in these accounts. At this stage Smt. Manga Tayaru appearing for the appellant contended that no amounts are lying in deposit in the accounts relating to the passbooks. If that is so, the appellant is at liberty to recover the rents due to him for all these years by initiating proceedings that are permissible under law.
49. Since I held that the entire litigation was brought into existence by the tenant, he shall pay the costs throughout the litigation to the appellant.
50. Accordingly, these second appeals are allowed.