THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD SECOND APPEAL No.346 of 2006 O R D E R: The Second Appeal, at the instance of the defendants in O.S.No.199 of 1999 on the file of the II Additional Senior Civil Judge’s Court, Visakhapatnam, is against the judgment and decree in A.S.No.122 of 2005 on the file of the II Additional District Judge, Visakhapatnam dated 27.01.2006, dismissing the appeal and refusing to interfere with the decree for delivery of vacant possession of the suit property by the defendants to the plaintiffs within a month from the date of the judgment of the trial Court. The facts leading to the dispute are that the plaintiffs filed the suit for eviction of the defendants from the suit schedule premises and delivery of vacant possession to them apart from recovery of Rs.18,000/- towards arrears of rent, alleging that they let out the premises to the defendants on a monthly rent of Rs.500/-, six years earlier, but the defendants committed default in payment of rents since September, 1994. The plaintiffs claimed that in spite of admitting the arrears of rent, the defendants were not vacating the premises in spite of demands and the building required major repairs and the building is required for personal occupation of the plaintiffs. A notice dated 16.8.1997 was futile and hence the suit. The defendants, while resisting the claim for eviction, admitted that they are the tenants in the suit property under the first plaintiff and the rent was Rs.300/- initially on 30.6.1987. A school is being run by the defendants in the property consisting of a two portioned building and some vacant land under an oral lease and an advance of Rs.10,000/- was also paid to the first plaintiff. As attempts were made to evict the defendants by force, a suit for permanent injunction was filed by the defendants in O.S.No.522 of 1997 on the file of the III Additional Senior Civil Judge’s Court in which an interim injunction was obtained. The suit was hence claimed to be liable for dismissal. While plaintiff Nos.2 to 12 are the legal representatives of the deceased first plaintiff, who were impleaded as per orders in I.A.No.532 of 1999 on 26.8.1999, the defendants pleaded in the additional written statement about another litigation in O.S.No.84 of 1996 and the later understanding between the second defendant and the first plaintiff. It is also contended that the 1773 square yards of agricultural land with a mango and coconut groove belonged to Simhachalam Devasthanam and is surrounded by a compound wall on all sides. Any purchase of that land from a farmer is invalid and so long as the defendnats paid the rents, they need not vacate the agricultural property. On such pleadings, the trial Court framed issues about the right of the first plaintiff to seek delivery of possession and arrears of rent and additional issues about the same questions in controversy. PWs 1 to 4 and D.W.1 were examined and Exs.A.1 to A.6 and B.1 to B.27 were marked by the trial Court during trial. In the judgment of the trial Court dated 11.3.2005, the rival contentions and the evidence were referred to in detail and it was noted that there was no dispute between the first plaintiff and the defendants about the landlord and tenant relationship. The pleas taken in the additional written statement were considered to be inconsistent with the original defence and the material in O.S.No.522 of 1997 was referred to as showing an admission by the second defendant about such relationship with the first plaintiff as a tenant and landlord. The rents were also admitted to be deposited till the end of December, 2004 and with reference to Section 115 of the Indian Evidence Act, the defendants were observed to have been barred from raising any plea against such relationship by estoppel. The trial Court also further noted that Ex.A.1 quit notice was admittedly served on the defendants as per Exs.A.2 and A.3 postal acknowledgments and in fact Ex.A.5 letter was addressed by the second defendant to the deceased-first plaintiff seeking time of two to three months to make alternative arrangements. The quit notice was examined with reference to the provisions of Section 106 of the Transfer of Property Act and referring to certain precedents on the aspect, the trial Court concluded that the possession of the defendants becomes that of tresspassers after the issuance of Ex.A.1 notice to quit. The trial Court also considered the claim for arrears of rent and concluded that the defendants failed to prove payment of an advance of Rs.10,000/- while the plaintiffs failed to prove that the defendants were in arrears of Rs.18,000/-. As such, the claim for arrears of rent was dismissed and the relief of possession was granted. In appeal, the first appellate Court in its judgment dated 27.1.2006 again adverted to the history and details of the litigation and opined that the relationship of landlord and tenant is admitted in Ex.A.5, which was not proved to have been written under pressure of police as claimed by the second defendant. The appellate Court also found that O.S.No.522 of 1997 seeking the relief of permanent injunction would itself show that the continuance of possession of the defendants was on payment of rents to the deceased first plaintiff. The inconsistent plea about the ownership of Simhachalam Devesthanam was considered by the appellate Court also to have been barred by Section 115 of the Indian Evidence Act and considered to be impermissible. The appellate Court concurred with the trial Court about the absence of proof of either arrears of rent or advance and consequently dismissed the appeal. In the Second Appeal, the defendants seek to contend that the suit claim is within the purview of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 and the suit is not maintainable. It is also contended that in the absence of proof of arrears of rent or personal requirement, mere eviction could not have been ordered only on the ground of the alleged relationship of landlord and tenant being terminated by the quit notice, more so, when the High Court decided in 41 writ petitions and it has been declared in G.O.Ms.No.578 dated 19.8.2000 that the land belongs to Simhachalam Devasthanam. Any plea of estoppel under Section 115 is unavailable on facts and the suit notice ought to have been considered to be not in consonance with Section 106 of Transfer of Property Act. The defendants, therefore, desired that the suit should fail as the first plaintiff had no valid title and as the rents were being paid or deposited by the defendants throughout the litigation even after the notice. The defendants suggested five questions as the substantial questions of law involved in the Second Appeal. The learned Judge while admitting the Second Appeal on 31.3.2006 framed two substantial questions of law as follows: 1. Whether the suit notice is valid under the provisions of Transfer of Property Act? 2. Whether the suit as framed is not maintainable and is liable to be dismissed according to law? Sri B.Narasimha Sarma, learned counsel for the appellants and Sri Rama Rao Ghanta, learned counsel for the respondents are heard. Though the appellants sought to raise questions of ownership of the land with Simhachalam Devasthanam, absence of applicability of doctrine of estoppel, applicability of the Rent Control Act to the suit claim, absence of proof of personal requirement or arrears of rent, receipt of rents subsequent to the notice to quit etc., as substantial grounds for challenging the judgments of the Courts below, no questions have been framed on such questions in controversy at the time of the admission of the Second Appeal and Order 42, Rule 2 of the C.P.C. positively prohibits the appellants to urge any other grounds in the appeal without the leave of the Court except on the questions formulated by the High Court at the time of the admission of the Second Appeal. While no leave is sought for by the appellants to canvass any other ground than those covered by the substantial questions framed by this Court on 31.3.2006, even otherwise it has to be noted that none of these defences were considered acceptable by the trial or the first appellate Court on facts and the findings on these questions of fact or mixed questions of law and fact cannot be considered to be such as can be reopened and reagitated in the Second Appeal. Coming to the two questions framed while admitting the Second Appeal, the amendment made to Section 106 of the Transfer of Property Act by the Central Act 3 of 2003 with effect from 31.12.2002 made the question of the period mentioned in Section 106 notice not very substantial as it was construed earlier. Sub-section 3 of the Amended Section 106 positively stated that a notice to quit shall not be deemed to be invalid merely because of any shortage in the period specified in the notice in violation of Sub- Section 1 of Section 106. If so, the technicalities involved in a notice to quit under Section 106 of the Transfer of Property Act no longer prejudice the claim of landlord for eviction, if the notice to quit otherwise satisfies the requirements of Section 106. The admitted facts of the case as pleaded before both the Courts below and as proved clearly show that irrespective of any controversy about the ownership of the property being with the first plaintiff or with Simhachalam Devasthanam, insofar as the defendants are concerned, they have taken the property on lease from the deceased first plaintiff and they are admittedly paying rent to her and had even sued her for a permanent injunction treating her as a landlord. Any denial of the title of the landlord is not permissible under such circumstances, and insofar as the defendants are concerned, their possession in the suit property could only be subject to the oral lease under which they are entitled to possession under the first plaintiff. If so, the notice to quit issued by the first plaintiff validly terminated such relationship irrespective of the personal requirement of the first plaintiff or the existence of any arrears of rent and, therefore, the defendants are bound to vacate the premises. Nothing has been shown to suggest that the suit as framed is opposed to any provision or principle of law and hence not maintainable nor any such plea was specifically taken before the trial Court or the first appellate Court. While the appeal should therefore fail, the learned counsel for the appellants Sri B.Narasimha Sarma, requested for time till the end of the academic year 2010-11, for vacating the premises in case of the failure of the appeal, as an educational institution is being run in the premises. Though Sri Rama Rao Ghanta, learned counsel for the respondents opposed the request, he has no serious objection for grant of a reasonable time. Therefore, considering all the facts and circumstances and the fact that an educational institution is being run in the premises and the academic year has already commenced, grant of six months time will be reasonable and just. Therefore, the Second Appeal is dismissed without costs. But, the appellants are granted six months’ time from today to vacate and deliver possession of the subject property to the decree holders and it is needless to specify that such continuance in possession is subject to the payment of the admitted rent. _____________________ G.BHAVANI PRASAD,J 9th July, 2010. PNV