Research › Search › Judgment

Andhra High Court · body

2025 DIGILAW 854 (AP)

Pasumarthi Veera Bhadra Rao, S/O Sathiyya v. Chinni Veerabhadravathi, W/o Sathiyya

2025-07-11

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the Judgment and decree, dated 23.01.2018 in A.S.No.28 of 2013, on the file of the Senior Civil Judge, Ramachandrapuram (“First Appellate Court” for short), confirming the Judgment and decree, dated 13.03.2013 in O.S.No.38 of 2008, on the file of Principal Junior Civil Judge, Alamuru (“Trial Court” for short). 2. The appellant herein is the defendant and the respondent herein is the plaintiff in O.S.No.38 of 2008 before the Trial Court. 3. The plaintiff initiated action in O.S.No.38 of 2008 with a prayer for eviction and vacant possession of the plaint schedule property; for arrears of rentals at Rs.2,500/- per month from January, 2004 onwards; for future damages at Rs.2,500/- per month from 1 st December, 2006 and for costs of the suit. 4. The learned Trial Judge decreed the suit with costs. Felt aggrieved of the same, the defendant in the above said suit filed A.S.No.28 of 2013 before the First Appellate Court. The learned First Appellate Judge dismissed the appeal by confirming the decree and judgment passed by the trial Court. Aggrieved thereby, the unsuccessful defendant in the suit approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the 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.38 of 2008, is as follows: The plaintiff is absolute owner of the plaint schedule building bearing Door No.4-185, consisting ground floor and first floor, situated at West Khandriga Village, Kapileswarapuram Mandal. In the year, 1995 the plaintiff leased out the ground floor of plaint schedule building to the defendant, who is no other her own brother, on oral lease on monthly rent of Rs.400/-. The defendant started Kirana business in it. Later, the rent was enhanced from time to time and it was enhanced to Rs.2,500/- per month from the month of June, 2004 and she issued receipts to defendant for payment of rents. Later, the defendant occupied the first floor of the schedule building and since September, 2002 the defendant has been enjoying the entire plaint schedule building. Later, the rent was enhanced from time to time and it was enhanced to Rs.2,500/- per month from the month of June, 2004 and she issued receipts to defendant for payment of rents. Later, the defendant occupied the first floor of the schedule building and since September, 2002 the defendant has been enjoying the entire plaint schedule building. The defendant made irregular payments up to the end of June, 2004 at Rs.2,500/- per month and later stopped payment of rents. Since the defendant had committed default of payment of rents, the plaintiff and her family members requested him to vacate the building and deliver the vacant possession. In the month of May 2006, the defendant promised to vacate the plaint schedule building by the end of June, 2006, but failed to vacate the same and filed a false suit in O.S.No.146 of 2006 before the trial Court for permanent injunction against the plaintiff herein. The plaintiff herein issued a legal notice on 04.09.2006 to the defendant calling upon him to vacate the property by 5 th of October 2006, the defendant received notice and kept quite. Again she issued another notice on 09.11.2006 to the defendant calling upon him that his tenancy will be determined with effect from 30.11.2006 and deliver vacant possession of plaint schedule building, but he kept quit and that the plaintiff is constrained to file the suit. 7. The defendant filed written statement before the trial Court denying the material averments in the plaint. The brief averments in the written statement are as follows: The defendant took the plaint schedule property on oral lease in the month of February 1995 on monthly rent of Rs.400/-, later the rent was enhanced in the year 2000 from Rs.400/- to Rs.500/- per month. He paid rents regularly without any default, but in view of the relationship between him and the plaintiff, he had not obtained any receipt from the plaintiff for payment of rents. The present rent is only Rs.500/- per month but not Rs.2,500/- per month. The plaint schedule property is consisting of ground floor and first floor, he has been doing Kirana business in the ground floor and has been residing in first floor and there are two electrical service connections to the ground floor and first floor and he has been paid electrical consumption charges. The plaint schedule property is consisting of ground floor and first floor, he has been doing Kirana business in the ground floor and has been residing in first floor and there are two electrical service connections to the ground floor and first floor and he has been paid electrical consumption charges. When the plaintiff came to West Khandrika Village on 20.05.2006, he offered to pay rent for the month of May 2006, but she refused to receive the same and demanded him to vacate and handover the plaint schedule property to her by the end of May 2006. He tried to secure suitable shop and house within short period but he could not trace out. On 03.06.2006 the plaintiff, her husband and four others came to the plaint schedule property and tried to evict him forcibly since he is a protected tenant, he shall be evicted through process of law. He filed O.S.No.146 of 2006 before the Trial Court against the plaintiff for permanent injunction and that the present suit is liable to be dismissed. 8. On the basis of above pleadings, the learned trial Judge, framed the following issues for trial: (1) Whether there is no land-lord and tenant relationship between the plaintiff and defendant? (2) Whether the defendant had committed default in payment of rentals as contended by the plaintiff? (3) Whether the plaintiff is entitled to the suit claim as prayed for? (4) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.4 were marked. On behalf of the defendant, D.W.1 to D.W.3 were examined and Ex.B.1 to Ex.B.3 were marked. 10. The learned Trial Judge 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 defendant filed the appeal suit in A.S.No.28 of 2013 before the First Appellate Court wherein the following points came up for consideration: 1) Whether the defendant has committed default in payment of rents? 2) Whether the defendant has to be evicted from the plaint schedule property? 3) To what relief? 11. The learned First Appellate Judge after hearing the arguments, answered the points, as above, against the defendant and dismissed the appeal confirming the judgment and decree passed by the learned Trial Judge. 2) Whether the defendant has to be evicted from the plaint schedule property? 3) To what relief? 11. The learned First Appellate Judge after hearing the arguments, answered the points, as above, against the defendant and dismissed the appeal confirming the judgment and decree passed by the learned Trial Judge. Felt aggrieved of the same, the defendant in the above suit, filed the present second appeal before this Court. 12. On hearing both sides counsel at the time of admission of the appeal, on 26.02.2020 , this Court framed the following substantial questions of law: (1) Whether the notice issued by the plaintiff under Section 106 of the Transfer of Property Act is waived by virtue of the respondent’s acceptance of rents under Section 113 of the Transfer of Property Act? If so, the judgments of the Courts below are vitiated in not considering the same? (2) Whether the judgments of the Courts below are vitiated in ignoring to consider the admissions made by the plaintiff being P.W.1 in her evidence? 13. Heard Sri T.V. Jaggi Reddy, learned counsel for the appellant and heard Sri N. Siva Reddy, learned counsel for the respondent. 14. In a second appeal under Section 100 of CPC the High Court cannot substantiate its own opinion for that of First Appellate Court unless the Court finds that the conclusions drawn by both the Courts are erroneous being, (i) contrary to the mandatory provisions of the applicable law or (ii) contrary to the law as pronounced by the Apex Court or (iii) based on inadmissible or no evidence. 15. The jurisdiction of the High Court in second appeal under Section 100 of CPC is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by both the Courts below and if the First Appellate Court has exercises in its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in a second appeal. 16. 16. The undisputed facts of both the parties are the plaintiff is the absolute owner of the plaint schedule property and she leased out the said property to the defendant, who is no other than her own brother and the defendant has been doing business in the ground floor and in first floor he has been residing along with his family. The second appeal is filed against the concurrent findings arrived by both the Courts below. It is an undisputed fact that the defendant herein instituted a suit in O.S.No.146 of 2006 before the Trial Court for seeking relief of permanent injunction against the plaintiff herein and the said suit was dismissed and an appeal was filed against the said decree and judgment passed by the Trial Court and the appeal was allowed by the Principal District Judge, Kurnool by granting relief of permanent injunction in favour of the defendant herein against the plaintiff herein until the defendant herein is evicted under due process of law. The fact remains that the plaintiff herein issued a legal notice to the defendant prior to institution of the suit for eviction of the defendant and Ex.A.1 and Ex.A.2 goes to show that a quit notice under Section 106 of the Transfer of Property Act has been issued by the plaintiff through her counsel and the defendant having received the said notice, did not choose to vacate the plaint schedule premises within a time specified by the plaintiff in Ex.A.1 quit notice which leads to institution of the present suit for eviction of the appellant/defendnat herein. 17. The relationship in between the plaintiff and defendant is not at all in dispute. It is also admitted fact by both the parties that the plaintiff is no other than the own sister of the defendant and the defendant is a lessee and the defendant is running a sundry shop in the ground floor and is residing in the first floor. The contention of the plaintiff is that the agreed monthly rent for suit schedule premises is Rs.2,500/-, whereas the contention of the appellant is that the agreed monthly rent in between both the parties is Rs.500/-. The contention of the plaintiff is that the agreed monthly rent for suit schedule premises is Rs.2,500/-, whereas the contention of the appellant is that the agreed monthly rent in between both the parties is Rs.500/-. On appreciation of the entire evidence on record, the learned Trial Judge came to a conclusion that the quantum of rent in between the plaintiff and defendant is Rs.500/- per month only in respect of the plaint schedule premises and the tenancy is month to month. The said finding is not yet challenged by the plaintiff. The appellant/defendant is filed First Appeal and the said First Appeal has been dismissed by the learned First Appellate Judge. 18. As per the evidence of D.W.1, he sent a money order under Ex.B.3 for three months rent for the month of May, June and July, 2006. The evidence of P.W.1 coupled with Ex.B.3 itself goes to show that the defendant is not in regular for payment of rents to the plaintiff and irregular in paying the rents to the land-lady/plaintiff. The defendant clearly admitted in his evidence in cross examination itself that the lease is month to month and he has to pay the rent to the plaintiff in every month without fail. The plaintiff adduced positive evidence to show that the defendant committed willful default of payment of rents from July, 2004 onwards. Moreover, no evidence is adduced by the defendant to prove that he offered rents to the plaintiff from July, 2004 onwards. 19. A notice under Section 106 of the Transfer of Property Act should be construed broadly and it should not be defeated by inaccuracies either in the description of the premises or name of the tenants or the date of expiry of notice. From the language used in the quit notice, it must be endeavored to ascertain the intention of the parties and that effect thereof and it should not be the read in hyper critical manner but should be construed in a commonsense way. Admittedly, the tenant was asked to vacate the suit schedule premises within 10 days from the date of receipt of Ex.A.1 quit notice. Having received Ex.A.1 quit notice, the defendant kept quit and not responded the legal notice issued by the plaintiff. 20. Admittedly, the tenant was asked to vacate the suit schedule premises within 10 days from the date of receipt of Ex.A.1 quit notice. Having received Ex.A.1 quit notice, the defendant kept quit and not responded the legal notice issued by the plaintiff. 20. It is well settled that on expiry of period of lease, the erstwhile lessee continuous in possession because of the law of the land viz., that original land-lady cannot physically thrown out such an erstwhile tenant by force. She must get her claim for possession adjudicated by a competent Court as per the relevant provisions of law. It is also equally settled that the status of an erstwhile tenant has to be treated as tenant at sufferance akin to a trespasser having no independent right to continue in possession. 21. 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 against the defendant and in favour of the plaintiff do not brook interference and that both the Courts below are justified in decreeing the suit in favour 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. Therefore, I do not find any illegality in the concurrent findings arrived by both the Courts below. 22. In the result, the second appeal is dismissed, confirming the judgment and decree of both the Courts below by granting four (04) months time to the appellant/defendant to vacate the plaint schedule premises and handover the vacant possession to the respondent/plaintiff. Considering the facts and circumstances, there shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.