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2025 DIGILAW 609 (AP)

Nellore Babuji v. Guduru Subba Rao

2025-04-17

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. This second appeal is filed aggrieved against the Judgment and decree dated 06-01-2023 in A.S.No.87 of 2017 on the file of the VII Additional District Judge, Gudur, SPSR Nellore District, confirming the Judgment and decree dated 13-9-2017 in O.S.No.49 of 2005 on the file of the Senior Civil Judge, Gudur. 2. The appellant herein is the defendant and the respondent is the plaintiff in O.S.No.49 of 2005 on the file of Senior Civil Judge’s Court, Gudur. 3. The plaintiff initiated action in O.S.No.49 of 2005 on the file of Senior Civil Judge’s Court, Gudur, with a prayer for recovery of possession by evicting the defendant from the suit schedule property and for recovery of Rs.1,26,000/- towards damages for unlawful possession and for future damages at the rate of Rs.3,500/- per month. 4. The learned Senior Civil Judge, Gudur, decreed the suit with costs directing the defendant to vacate the suit schedule property by removing his belongings and deliver vacant possession of suit property within three months from the date of judgment and to pay Rs.1,26,000/- to the plaintiff towards damages and further to pay Rs.3,500/- per month to the plaintiff from the date of suit to the date of delivery of possession. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed the aforesaid appeal before the first appellate Court. The learned VII Additional District Judge, Gudur, dismissed the appeal suit by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendant/appellant approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.49 of 2005, is as follows: (a) It is pleaded that the plaintiff is the owner of plaint schedule property.The defendant requested the plaintiff to lease out the plaint schedule property to him for running Engineering workshop by raising sheds etc., therein by him for a period of ten years. The plaintiff agreed for the same and leased out the plaint schedule property to the defendant for a period of ten years on payment of rent of Rs.75/- per month by the defendant. The plaintiff agreed for the same and leased out the plaint schedule property to the defendant for a period of ten years on payment of rent of Rs.75/- per month by the defendant. Both the plaintiff and the defendant executed a registered lease deed on 20-10-1983 containing the terms that the plaint schedule property is leased out by the plaintiff to the defendant for a period of ten years from 20-10-1983 to 19-10-1993 on a monthly rent of Rs.75/-, that the defendant should pay a monthly rent of Rs.75/- every month within 25 th day of subsequent month under receipt issued by the plaintiff, that the defendant should not sub-lease the property to others and in case he sublet the property, the defendant is liable to be evicted from the property even before the expiry of lease period and that after expiry of the lease period, the defendant has to vacate the schedule mentioned property and deliver possession of the same to the plaintiff without notice. (b) It is further pleaded that the defendant is in occupation of the plaint schedule property since 30-10-1983 running an Engineering workshop therein by raising temporary sheds. The defendant filed the suit in O.S.No.163 of 1983 on the file of District Munsif’s Court, Venkatagiri, against one Pattabigari Venkatrama Raju and three others for permanent injunction restraining the defendants and their men from interfering with his peaceful possession and enjoyment of the plaint schedule property which was leased out to him by the plaintiff herein. In the plaint of the above suit, the defendant admitted that the plaintiff herein leased out the plaint schedule property herein under a registered lease deed dated 20-10-1983 and since then, he is in possession of the same. The defendant paid rent till the expiry of lease period. Subsequently, he has not paid rent to the plaintiff nor vacated the plaint schedule property in spite of repeated demands by him. Thus, he committed willful default in payment of rent. As the defendant has not vacated the plaint schedule property and delivered possession of the same to the plaintiff and has not paid damages in spite of repeated demands, he got issued a registered notice on 03-7-2004 but the defendant has neither complied with the demand made in the notice nor sent any reply and that the plaintiff is constrained to file the suit. 7. 7. The defendant filed a written statement denying the contents of plaint averments and he further contended as follows: (a) It is admitted that the plaintiff is the owner of plaint schedule property and both the plaintiff and the defendant entered into and executed a registered lease deed dated 20-10-1983. But, it is denied that the defendant is in occupation of the plaint schedule property since 20-10-1983 running an Engineering workshop therein by raising temporary sheds. (b) It is further admitted that the defendant entered into a registered lease deed on 20-10-1983 in respect of the plaint schedule property, but the said lease deed was not come into force as it was not acted upon by both the parties because subsequent to the execution of the said lease deed, it came to light that there are several disputes between the plaintiff and the neighbouring land owners. Therefore, the defendant has not entered into the plaint schedule site to do any business therein. During the course of the said disputes between the plaintiff and the neighbouring land owners, the plaintiff himself got filed the suit in O.S.No.163 of 1985 in the name of defendant by obtaining his signatures basing on the above said lease deed with a view to protect the plaint schedule property from the claims of neighbouring land owners. Therefore, the defendant was only a name lender in the said suit and he did not know even about the final result of the above said suit and the said suit was only a creation of the plaintiff himself for his benefit. (c) It is further contended that the defendant has occupied an extent of about 2 or 3 ankanams of site, which was lying vacant to the north-west of the plaint schedule site and he has raised asbestos sheets shed therein and doing his workshop business since about 1985. Therefore, the defendant is nothing to do with the plaint schedule site. While so, the plaintiff herein has encroached the site situated to the west of the plaint schedule site and occupied the same and made some construction without any plan as the said site is an encroachment. Therefore, it is prayed to dismiss the suit with costs. 8. On the basis of above pleadings, the learned Senior Civil Judge, Gudur, framed the following issues for trial: (1) Whether the lease deed dated 20-10-1983 not acted upon ? Therefore, it is prayed to dismiss the suit with costs. 8. On the basis of above pleadings, the learned Senior Civil Judge, Gudur, framed the following issues for trial: (1) Whether the lease deed dated 20-10-1983 not acted upon ? (2) Whether the plaintiff is entitled for vacant possession of the plaint schedule property ? (3) Whether the plaintiff is entitled for past and future damages for use and occupation, if so to what amount ? (4) Whether the defendant encroached the plaint schedule property and not liable for eviction ? (5) To what relief ? After the case was remanded, the following additional issues were also framed on 09-7-2012 and 15-11-2016: (6) Whether the defendant is in possession of plaint schedule property? (7) Whether the plaintiff is entitled to recover the vacant site in possession of the defendant ? (8) Whether the plaintiff is entitled to damages at the rate of Rs.3,500/- per month for the last years prior to filing the suit towards damages and occupation of the plaint schedule property ? (9) Whether the plaintiff is entitled for past and future damages for the use and occupation, if so, to what amount ? (10) Whether any part of land shown as suit schedule property forms part of the land covered by Ex.A-1 and/or Ex.A-4 ? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-13 were marked. On behalf of the defendant, D.Ws.1 and 2 were examined and Exs.B-1 to B-3 were marked. 10. The learned Senior Civil Judge, Gudur, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S.No.87 of 2017 before VII Additional District Judge’s Court, Gudur, wherein, the following points came up for consideration. (1) Whether the trial Court properly appreciated the evidence and interpreted the direction given by the High Court in C.M.A.Nos.856 and 915 of 2012, dated 30-4-2015, a real prospective and decree in favour of the plaintiff is sustainable or not ? (2) Whether the plaintiff has established that the plaint schedule property is part and parcel of his own property and let out to the defendant under a registered lease deed Ex.A-1, dated 20-10-1983 ? (2) Whether the plaintiff has established that the plaint schedule property is part and parcel of his own property and let out to the defendant under a registered lease deed Ex.A-1, dated 20-10-1983 ? (3) Whether there are any grounds to interfere with the findings of the trial Court in its judgment in O.S.No.49 of 2005, dated 13-9-2017 ? 11. The learned VII Additional District Judge, Gudur, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant/appellant and in favour of the plaintiff/respondent and dismissed the appeal suit filed by the defendant. Felt aggrieved of the same, the unsuccessful defendant in O.S.No.49 of 2005 filed the present second appeal before this Court. 12. After institution of the second appeal by the defendant in the suit, this Court ordered notice to the respondent before admission and the said notice is served on the respondent/plaintiff. Heard Sri J.V. Phaniduth, learned counsel for the appellant/defendant and Sri C. Subodh, learned counsel for the respondent/plaintiff. 13. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of C.P.C., could be admitted only when the appellant satisfies the Court that substantial question of law between the parties arise in the case. A proper test for determining whether a question of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In the case of Boodireddy Chandraiah v. Arigela Laxmi , (2007) 8 SCC 155 the Apex Court held that it is not within the domain of High Court to investigate grounds on which the findings were arrived at by the last Court of fact viz., the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts, documentary evidence and contents of documents cannot be held to be raising a substantial question of law. 14. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of CIVIL PROCEDURE CODE , it is for him to meet the above principles and satisfy the Court whether there exists any substantial question of law. 15. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore, the grounds urged in the second appeal are to be scrutinized to find out whether the appellant has shown any substantial question of law. The contention of appellant is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment and decree passed by both the Courts below i.e. the trial Court and the first appellate Court. 16. The appellant is defendant and the respondent is plaintiff in the suit.The respondent/plaintiff filed the suit for eviction of the defendant from the plaint schedule property and also delivery of possession of the plaint schedule property to the plaintiff. The plaintiff relied on the evidence of P.W.1 and also relied on Exs.A-1 to A-13. The undisputed facts of both the parties are that the plaintiff is the owner of plaint schedule property and the plaintiff and the defendant entered into and executed a registered lease deed dated 20-10-1983. The lease deed is a registered lease deed under Ex.A-1. The same is admitted by the defendant. The appellant would contend that the lease deed was not acted upon and there are several disputes between the plaintiff and neighbouring land owners and therefore, the defendant has not entered into the suit schedule property. 17. The lease deed is a registered lease deed under Ex.A-1. The same is admitted by the defendant. The appellant would contend that the lease deed was not acted upon and there are several disputes between the plaintiff and neighbouring land owners and therefore, the defendant has not entered into the suit schedule property. 17. In order to prove the case of the plaintiff, the plaintiff relied on Ex.A-4 certified copy of plaint in O.S.No.163 of 1985 on the file of the District Munsif, Venkatagiri, for seeking the relief of prohibitory injunction against third parties and in the plaint itself, it was recited by the defendant herein as a plaintiff in that suit that he is a tenant of plaintiff herein under a registered lease deed dated 20-10-1983. The appellant herein admitted about filing of the suit in O.S.No.163 of 1985. The contention of appellant is that the plaintiff herein has got filed the said suit by obtaining his signatures on some white papers, but the same is not at all proved by the appellant. The possession of the defendant as a tenant in the plaint schedule property is admitted by the defendant herein in the suit proceedings in O.S.No.163 of 1985, therefore, the contention of appellant that he did not enter into the plaint schedule property as a tenant is untrue and the same is not at all proved by the defendant.The plaint schedule properties in both the suits are one and the same. 18. The plaintiff got issued a legal notice Ex.A-2, dated 02-7-2004, prior to filing of the suit to the defendant. Ex.A-3 goes to show that the defendant herein received the said legal notice. No reply notice has been given by the appellant to Ex.A-2 legal notice. The appellant, who received the legal notice before filing of the suit, did not even choose to send any reply denying the possession of the plaint schedule property as a tenant and not issued any reply by denying about the filing of the suit in O.S.No.163 of 1985 as a tenant against third parties. The appellant has not explained any reason for not responding to the legal notice. The appellant has not explained any reason for not responding to the legal notice. This circumstance goes a long way in saying that the appellant has chosen to come up with a belated and false theory of not entering into the plaint schedule property as a tenant and also obtaining signatures by the plaintiff on some white papers. 19. It was contended by the appellant that he has occupied an extent of2 or 3 ankanams of site, which was lying vacant to the north-west of the plaint schedule site and raised asbestos sheets shed therein and doing his workshop business since 1985. The appellant i.e. D.W.1 admitted in his evidence in cross-examination itself about the execution of original lease deed under Ex.A-1 and he admitted that Ex.A-1 was written in Telugu and he did not issue any legal notice to the plaintiff for cancellation of lease deed under Ex.A-1 on the ground that it was not acted upon. The contention of appellant is that the defendant is running a business by keeping machinery in Survey No.50-1B of Chevireddypalli village. The defendant also relied on the evidence of D.W.2. D.W.2 deposed that he does not know boundaries of the workshop of defendant and he does not know personally about the ownership of workshop over the site when he constructed the shop and he does not know whether the defendant had taken the site on lease from the plaintiff.He pleaded ignorance of all crucial aspects. 20. The appellant relied on Exs.B-1 to B-4. Ex.B-1 is a receipt dated26-02-2011. Ex.B-2 is renewal of licence dated 23-02-2009. Exs.B-3 and B-4 are copies of challans. The suit was instituted by the plaintiff in the year 2005. Therefore, Exs.B-1 to B-4 are no way helpful to the appellant to prove his defence put-forth by him in the written statement. Another important crucial circumstance to disbelieve the evidence of defendant is that the appellant is not denying the existence of plaint schedule property in Survey No.50-C and R.S.No.50-1B and he has also not denied that the total extent of property belongs to the plaintiff is 160 square yards from out of 320 sq. yards. The defendant also admitted that the plaintiff is the owner of entire property to an extent of 160 sq. yards wherein he constructed nine shops after obtaining approval from the Gram Panchayat. yards. The defendant also admitted that the plaintiff is the owner of entire property to an extent of 160 sq. yards wherein he constructed nine shops after obtaining approval from the Gram Panchayat. The report of Advocate Commissioner also clearly goes to show that the site in which the defendant run business is in the suit schedule Survey No.50-1B. Therefore, I am unable to accept the contention of appellant that he did not enter into the plaint schedule property as a tenant and he occupied the neighbouring property of the suit schedule property. 21. The plaintiff claimed damages at the rate of Rs.3,500/- per month.On appreciation of the entire evidence on record and on re-appreciation of the entire evidence on record, both the learned trial Judge as well as the learned first appellate Judge came to the conclusion that the plaintiff has been claiming Rs.3,500/- per month towards rent and both the Courts below made an observation that an amount of Rs.3,500/- per month towards rent is reasonable as the plaint schedule property is situated in a commercial area. The plaintiff also claimed an amount of Rs.1,26,000/- (Rupees one lakh and twenty six thousand only) for unlawful possession and occupation by the defendant for the last three years prior to filing of the suit after expiry of lease period. The material on record further reveals that absolutely there is no evidence on record on behalf of the appellant to disprove the claim of the plaintiff. The appellant is contending that he is doing business in the schedule property. On considering the entire evidence on record, both the Courts below gave a concurrent finding that the plaintiff is entitled to the damages as sought for and awarded damages by the learned trial Judge, which was confirmed by the learned first appellate Judge. 22. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the plaintiff and against the defendant do not brook interference and that both the Courts below are justified in decreeing the suit of the plaintiff. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of Code of Civil Procedure. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law. 23. On considering the entire material on record, this Court finds that no substantial question of law is involved in the second appeal and resultantly, the same is liable to be dismissed at the stage of admission. 24. In the result, the second appeal is dismissed at the stage of admission, confirming the judgments and decrees of both the Courts below. Four months’ time is granted to the appellant/defendant to deliver vacant possession of the plaint schedule property to the respondent/plaintiff, failing which the plaintiff is entitled to take necessary steps as per law. Pending applications, if any, shall stand closed. Each party do bear their own costs in the second appeal.