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2004 DIGILAW 1111 (AP)

Bikkina Satyzanarayana v. Reddy Lakshmi

2004-09-30

ELIPE DHARMA RAO

body2004
( 1 ) (APPEAL under Section 100 of CPC against the decree in A. S. No. 32 of 1996 dt. 11. 3. 2002 on the file of the Court of the Senior Civil Judge, Ramachandrapuram E. G. District preferred against the decree in O. S. No. 55 of 1989 dt. 16. 07. 1996 on the file of the court of the District Munsif, Alamuru E. G. District.) aggrieved by the judgment and decree of the Senior Civil Judge, Ramachandrapuram, East Godavari District in Appeal Suit No. 32 of 1996, dated 11-03-2002, wherein the learned Senior Civil Judge, after reappraisal of both the oral and documentary evidence available on record, reversed the finding arrived at by the District Munsif, Alamuru, East Godavari District in O. S. No. 55 of 1989, dated 16-7-1996, the present second appeal is filed. ( 2 ) FOR the sake of convenience, the parties herein are referred to as arrayed in the trial Court. The facts leading to filing of the above second appeal, briefly narrated, are that the plaintiff is the owner of the plaint schedule property by virtue of the registered sale deed dated 29-5-1981 along with some other properties that are situated to the north of the plaint schedule property. She purchased the said site from one Palacharla Abbayi. The defendant has been a tenant of the plaintiff for the suit schedule property on an yearly rent of Rs. 1,200/ -. The rent is from year to year and the year of the tenancy is from 1st April to 31st March of the succeeding year. The rent is payable by 1st April of the year. The defendant got constructed a godown and a shed and carrying on business therein under the name and style of Mandapeta Gas Company. The defendant paid rents to the plaintiff up to 31-3-1987 under receipt and failed to pay the same for the year 1987-88. As the defendant committed default in payment of rents, the plaintiff got issued a registered notice dated 29-9-1988 terminating the tenancy and demanded for delivery of the vacant possession by 1-4-1989 and also arrears of rent for the years 1987-88 and 1988-89. The defendant received the said notice on 1-10-1988 and got issued a reply on 15-10-1988 with false allegations. The plaintiff has not executed any lease deed as averred in the reply notice and the lease is not for 28 years as contended. The defendant received the said notice on 1-10-1988 and got issued a reply on 15-10-1988 with false allegations. The plaintiff has not executed any lease deed as averred in the reply notice and the lease is not for 28 years as contended. To that reply notice, the plaintiff got issued a rejoinder dated 26-10-1988, requesting the defendant to send a Photostat copy of the alleged agreement of lease dated 9-10-1982. The defendant failed to the send the same. Along with the reply, the defendant sent a demand draft for Rs. 1,200/- towards the rent of the year 1987-88. In the rejoinder, the plaintiff demanded the defendant to pay arrears of rent for the year 1988-89. Subsequently, the defendant sent a demand draft for Rs. 1,200/- towards arrears of rent for the year 1988-89. The plaintiff demanded the defendant that he will be held liable for damages for use and occupation at the rate of Rs. 3,600/-, if he fails to vacate the schedule property by 1-4-1989. But the defendant failed to vacate the premises. Hence the suit. ( 3 ) ON the other hand, the defendant filed his written statement disputing the claim of the plaintiff. It is the case of the defendant that the plaintiff is his relative and that at the instance of the husband of the plaintiff late Reddi Surya Rao, the defendant applied for permission to Mandapeta Municipality for running business in L. P. G. cylinders in Mandapeta basing on the lease agreement dated 9-10-1982 in respect of the plaint schedule property, executed by the plaintiff in favour of the defendant for a period of 28 years commencing from 8-10-1982 to 9-10-2010, and that the plaintiff agreed for construction of the godown and office in the plaint schedule site at the cost of the defendant and authorized the defendant to pay taxes thereof. At the end of the stipulated period of lease, the plaintiff agreed to pay the value of the building at the rates prevailing by then, to take delivery of the plaint schedule property with the constructions thereof or otherwise the period of lease be extended further. The rent of Rs. 1,200/- per year was stipulated in the said agreement. At the end of the stipulated period of lease, the plaintiff agreed to pay the value of the building at the rates prevailing by then, to take delivery of the plaint schedule property with the constructions thereof or otherwise the period of lease be extended further. The rent of Rs. 1,200/- per year was stipulated in the said agreement. Due to the relationship and friendship with the plaintiff and her husband late Reddi Surya Rao, the defendant did not insist upon the plaintiff for execution of the required lease deed in respect of the plaint schedule site though the plaintiff agreed to execute the registered lease deed in terms of the lease agreement at her convenience. The defendant was put in possession of the plaint schedule site on 9-10-1982 itself, and that basing on the said lease agreement, the defendant constructed the office building in the year 1982 in the plaint schedule site and purchased Ac. 0-01 cent of land adjacent to the east of the plaintiff schedule site from one Chikkam Mangayamma in the year 1983 for construction of the godown as the plaint schedule site was insufficient for construction of the godown. The defendant got his business registered from 29-7-1983 as L. P. G. Dealer for Mandapeta and started business on 12-3-1984. The defendant has been paying rent of Rs. 1,200/- per year regularly to the husband of the plaintiff late Reddi Surya Rao. The defendant did not obtain receipts from late Reddi Surya Rao in view of the relationship, friendship and confidence. It is submitted that he did not make any default in payment of rent for the period from 1-4-1987 to 31-3-1988, that the defendant sent rents through his Clerk for the period from 1-4-1987 to 31-3-1988, that the plaintiff rejected to receive the same and that thereafter, the defendant sent the rent through money order. When the plaintiff refused the same and got issued a quit notice to him, he sent the rent for the year 1987-88 through demand draft along with reply notice, which was received by the plaintiff. The plaintiff, being the second wife of Reddi Surya Rao, after the death of Reddi Surya Rao, disputes arose between the plaintiff and the son of Reddi Surya Rao and that the defendant being relative of Reddi Surya Rao, played neutral role between them. The plaintiff, being the second wife of Reddi Surya Rao, after the death of Reddi Surya Rao, disputes arose between the plaintiff and the son of Reddi Surya Rao and that the defendant being relative of Reddi Surya Rao, played neutral role between them. The plaintiff bore grudge against the defendant, as he did not support the plaintiff directly and got filed this suit with false and frivolous allegations suppressing the fact of lease agreement between them for a period of 28 years. Therefore, the plaintiff is not entitled for any future profits as claimed by her, and prayed to dismiss the suit with exemplary costs. ( 4 ) BASING on the pleadings, the trial Court settled the following issues for trial. 1. Whether the plaintiff is entitled for the eviction of the defendant from the plaint schedule property? 2. Whether the plaintiff is entitled for granting of future profits? And 3. To what relief? ( 5 ) ON scrutiny of both the oral and documentary evidence adduced on behalf of the plaintiff as P. Ws. 1 and 2 and Exs. A-1 to A-5 and the evidence adduced on behalf of the defendant as D. Ws. 1 to 5 and Exs. B-1 to B-30, the trial Court dismissed the suit of the plaintiff filed for eviction of the defendant and for possession of the plaint schedule property and for future profits. Aggrieved of the same, the plaintiff preferred appeal in A. S. No. 32 of 1996 before the Senior Civil Judge, Ramachandrapuram, East Godavari District. ( 6 ) AFTER reappraisal of both the oral and documentary evidence placed on record and on an extensive consideration of the material, the appellate Court came to the conclusion that Ex. B-6, Xerox copy of the alleged agreement of lease between the plaintiff and the defendant, was filed after chief-examination of the defendant and that document was not confronted by the plaintiff. Moreover, eviction notice under Section 106 of the Transfer of Property Act was issued by the plaintiff six months in advocate terminating the tenancy with the end of the lease year i. e. by 31st March. The defendant made a mention about Ex. B-6 in the rejoinder when he was directed to send a Xerox copy of the agreement of lease, he failed to do so. The defendant made a mention about Ex. B-6 in the rejoinder when he was directed to send a Xerox copy of the agreement of lease, he failed to do so. On the other hand, his plea is that the original of agreement of lease was filed before Mandapeta Municipality for sanction of construction of building in the suit schedule property, therefore he is unable to file the original of Ex. B-6. If that is the case, he should have examined any one of the officers from Mandapeta Municipality to prove that the original of Ex. B-6. Further, after filing this Ex. B-6, more so after recording chief-examination of the defendant, he was re-examined and marked this document subject to proof. But he had not taken any steps to register this document as its value is more than Rs. 100/- neither sought for impounding the document to use it as a collateral purpose and further observed that the defendant has not taken any steps before filing this document the procedure contemplated under Section 65 of the Indian Evidence Act. Therefore, on all other aspects, the appellate Court came to the conclusion that the agreement of lease was for year to year and for not 28 years. Therefore, it interfered with the findings arrived at by the trial Court and decreed the suit ordering eviction of the defendant from the plaint schedule property and to deliver the vacant possession of the same to the plaintiff within 30 days from the date of judgment. ( 7 ) NOW, in this Second Appeal, the appellant-defendant mainly contending on the following substantial question of law: (a) Whether the appellate Court is legally correct in reversing the finding relating to the existence of Ex. B-6 lease agreement in the light of the protection available to the appellate under Section 53 (A) of the Transfer of Property Act? (b) Whether the lower appellate Court is right in reversing the finding with regard to the receiving of Ex. B-6 document as secondary evidence as envisaged in Section 65 of the Evidence Act? (c) Whether the lower appellate Court is correct in distinguishing the ratio laid down by this Court in a decision reported in A. I. R. 1981 A. P. at page 38, though the nature of the premises is one and the same? B-6 document as secondary evidence as envisaged in Section 65 of the Evidence Act? (c) Whether the lower appellate Court is correct in distinguishing the ratio laid down by this Court in a decision reported in A. I. R. 1981 A. P. at page 38, though the nature of the premises is one and the same? and (d) Whether the lower appellate Court is right in holding that the respondent herein is entitled for possession in the light of Section 111 of the Transfer of Property Act, when the construction made in the suit schedule site are admittedly made by the defendant? ( 8 ) IT is submitted by the learned Counsel for the appellant-defendant that the Appellate Court has failed to appreciate the recitals in Ex. B-6 by virtue of which he is in possession of the land and therefore he is having protection under Section 53 (A) of the Transfer of Property Act. Therefore, the Appellate Court has not properly appreciated the evidence, both oral and documentary, adduced on behalf of the defendant. Therefore, it amounts to violation. I am unable to appreciate the contention of the learned Counsel for the appellant-defendant. ( 9 ) THE basis for claiming 28 years lease is Ex. B-6, a Xerox copy, which is not admissible in evidence unless it is impounded. After impoundage of the document, it can be used for a collateral purpose. As rightly pointed out by the appellate Court, the defendant has not taken any steps to confront the said document with P. W. 1. He failed to produce a Photostat copy of the agreement of lease to the plaintiff when it was requested through a rejoinder. More so, he has not followed the procedure as contemplated under Section 65 of the Indian Evidence Act to give notice to the person who is holding the original copy of Ex. B-6. Therefore, the reasons given are agreed with the reasons given by the appellate Court. There is no substantial question of law as pleaded by the Counsel for the appellant-defendant to decided in this appeal. B-6. Therefore, the reasons given are agreed with the reasons given by the appellate Court. There is no substantial question of law as pleaded by the Counsel for the appellant-defendant to decided in this appeal. ( 10 ) THE leaned Counsel for the appellate relied upon a decision reported in Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla and Sons (A. I. R. (37) 1950 Supreme Court 1), wherein it is held as follows: whether in an action to eject a lessee on the ground that he had no registered deed of lease executed in his favour the defendant lessee takes the plea of part performance and proves that there was a written and signed contract of lease in his favour and that he had taken possession in accordance with the terms of the agreement and had built a factory on the land and also that he was paying rent to the plaintiff in accordance with that agreement the defendant is entitled to retain possession in spite of an absence of the registered deed. ( 11 ) THE above ruling relied upon by the Counsel for the appellant is not applicable to the facts and circumstances of the case on hand as that ruling was passed by the Supreme Court on the basis of admissions made by the plaintiff and also that there is an agreement of lease from the evidence adduced. ( 12 ) FURTHER, the learned counsel for the appellant relief upon a decision reported in Shrimand Shamrao Suryavanshi and Another Versus Pralhad Bhairoba Suryavanshi (Dead) By LRs. and Others ( (2002) 3 Supreme Court Cases 676), wherein it is held as follows: 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 Transfer of Property Act, 1882. and Others ( (2002) 3 Supreme Court Cases 676), wherein it is held as follows: 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 Transfer of Property Act, 1882. 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 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 wiling to perform his part of the contract. This decision is also not applicable to the present case as there was an agreement of sale and the conditions enumerated above were complied with in the said case. ( 13 ) FINALLY, the learned Counsel for the appellate requested this court to give four months time to enable the appellant-defendant to vacate the premises and handover the vacant possession of the land. Accordingly, the said request is accepted on condition of his filing an undertaking to that effect before the Court below within two weeks from the date of receipt of a copy of this judgment. The second appeal is dismissed accordingly. No costs.