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2006 DIGILAW 800 (AP)

PANCHUMARTHI PRASAD RAO v. P. VENKATA SUBBA RAO

2006-07-10

L.NARASIMHA REDDY

body2006
L. NARASIMHA REDDY, J. ( 1 ) DEFENDANT in O. S. No. 91 of 1999, in the Court of II Additional senior Civil Judge, Vijayawada, filed the Second Appeal. The 1st respondent (who is since dead and represented by his legal heirs) filed the suit for eviction of the appellant from the suit schedule properties, and for recovery of a sum of Rs. 90,000/-towards damages, for use and occupation. He was the owner of the suit schedule property. Through a registered sale deed dated 24. 10. 1970, the property was leased out to the appellant, for a period of two years and two months, subject to the conditions mentioned therein. Since the appellant failed to vacate the premises, 1st respondent got issued a notice, dated 16. 6. 1978, under Section 106 of the Transfer of Property Act, for short "the act". Thereafter, he filed O. S. No. 1586 of 1978, which, on transfer to the Court of II Additional Subordinate Judge, Vijayawada, came to be renumbered as O. S. No. 383 of 1983; for eviction. The appellant raised a plea that the quit notice did not accord with section 106 of the Act, on the ground that the land was leased for industrial purpose. Though the suit was decreed by the trial court, in an appeal preferred by the appellant, the decree was set aside. ( 2 ) THE 1st respondent got issued a fresh notice, dated 8. 2. 1993, and filed the present suit. The appellant raised the grounds of limitation, etc. Through its judgment, dated 23. 3. 2005, the trial court decreed the suit. A. S. No. 52 of 2005, filed by the appellant, in the Court of VII Additional District Judge (FTC), Vijayawada, was also dismissed on 5. 6. 2006. Hence this Second Appeal. ( 3 ) SRI T. S. Anand, learned counsel for the appellant, submits that though the notice under Section 106 of the Act was issued, way back on 8. 2. 1993, O. S. No. 91 of 1999 was filed 5 years thereafter, i. e. on 30. 10. 1998, and thereby it is barred by limitation, under Article 113 of the Schedule to the Limitation Act. A plea as to res judicata was raised, in the grounds of appeal, but the learned counsel for the appellant did not press the same into service. 10. 1998, and thereby it is barred by limitation, under Article 113 of the Schedule to the Limitation Act. A plea as to res judicata was raised, in the grounds of appeal, but the learned counsel for the appellant did not press the same into service. He has urged certain other contentions, touching on the appreciation of evidence, quantum of damages, etc. ( 4 ) SRI P. R. Prasad, learned counsel for the respondent, on the other hand, submits that the delay in filing the suit was on account of the pendency of the appeal preferred by the appellant herein, against the decree in O. S. No. 393 of 1983. He further contends that the relevant provision for counting the limitation of the present case is Article 67 of the Schedule to the Limitation Act. ( 5 ) THE relationship of the parties viz, that the appellant is the lessee and that the respondents are the lessors, as regards the suit schedule property, is not disputed. There is agreement between the parties as to the manner in which the lease commenced, and its initial duration. The premises were leased out for the purpose of running an industry. The notice issued by the respondent, under Section 106 of the Act, on 16. 6. 1978, was found to be not in accordance with Section 106. Therefore, the earlier round of litigation initiated by the 1st respondent, ended against him. ( 6 ) IN the instant case, no issue was framed on the question of limitation, nor upon the validity or otherwise, of the notice issued under Section 106 of the Act, marked as Ex. A-2. PWs-1 to 3 were examined on behalf of the respondents and Exs. A-1 to A-25 were marked. The appellant examined Dws-1 and 2 and filed Exs. B-1 to b-3. Apart from the same, Exs-X-1 to X-3 were also taken on record. Though the appellant did not dispute the tenancy, still an issue was framed on it. The actual controversy was discussed under issue No. 2, viz; whether the plaintiff is entitled to evict the defendant. It turned around the plea raised by the appellant herein that his tenancy is permanent. A plea of res judicata was also rejected. In the lower appellate court, the discussion proceeded, almost on the same lines. The actual controversy was discussed under issue No. 2, viz; whether the plaintiff is entitled to evict the defendant. It turned around the plea raised by the appellant herein that his tenancy is permanent. A plea of res judicata was also rejected. In the lower appellate court, the discussion proceeded, almost on the same lines. An additional plea was raised by the appellant herein that he was only a licencee, and not the lessee. Realizing the untenability of the same, learned counsel for the appellant did not urge it, before this court. ( 7 ) THE principal contention urged on behalf of the appellant is as to limitation, in filing the suit. Basically, it cannot be entertained for the first time, at the stage of second appeal. Limitation, by its very nature, is a mixed question of fact and law, and unless the relevant facts are specifically pleaded, it cannot be appreciated by the courts. For that reason, it is not permitted to be raised at the appellate stage, for the first time. ( 8 ) BE that as it may, the contention of the appellant is that the suit ought to have been filed within three years from 8. 2. 1993, on which date Ex. A-2, a notice under Section 106 of the Act, was issued. He invokes Article 113 of the Schedule to the Limitation act. The said article is residuary in nature, and would apply to cases, where no specific period of limitation is prescribed. It is not in dispute that Article 67 of the Schedule to the Limitation Act prescribes the period of limitation, i. e. , 12 years, for filing the suits for eviction of a lessee. The starting point is the date of termination of the lease. The lease between the appellant and the respondent stood terminated, through Ex. A-2, on 8. 2. 1993. The suit was filed on 30. 10. 1998. Therefore, it is clearly within limitation. The delay in presenting the suit was on account of the pendency of the appeal preferred by the appellant herein, against the decree in O. S. No. 383 of 1983. Viewed from any angle, this court does not find any merits in this Second Appeal. No substantial question of law arises for consideration. ( 9 ) THE Second Appeal is accordingly dismissed. Viewed from any angle, this court does not find any merits in this Second Appeal. No substantial question of law arises for consideration. ( 9 ) THE Second Appeal is accordingly dismissed. It is represented that the appellant needs reasonable time for securing alternative premises and to shift his industry. The respondent opposes the plea. Having regard to the facts and circumstances of the case, the appellant is granted time till 31. 3. 2007, subject to payment of rent regularly, on or before 5th of every month. In case, the appellant continues in possession of the premises, beyond 31. 3. 2007, apart from being liable to be evicted through the execution proceedings, he shall be liable to pay damages, at the rate of Rs. 10,000/- per month, commencing from 1. 8. 2006. There shall be no order as to costs.