THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.1422 of 2010 Dated:- 30th April, 2011 Between:- Smt. Sharda Devi Goel …Appellant AND Smt. S. Yadamma …Respondent THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.1422 of 2010 JUDGMENT:- This appeal is directed against the judgment and decree dated 02.11.2010 passed in A.S.No.280 of 2008 by the XI Additional Chief Judge (FTC), City Civil Court, Hyderabad (‘the lower appellate authority’, for brevity), whereby and whereunder, the judgment and decree dated 07.02.2008 passed in O.S.No.2114 of 2004 by the XIX Junior Civil Judge, City Civil Court, Hyderabad (‘trial Court’, for brevity) was reversed. 2. The appellant herein is the tenant and the respondent herein is the landlord of the suit schedule premises, i.e., Mulgies 2 and 3 at premises bearing municipal number 17-1-383/102/1, admeasuring about 475 Sq. ft. situated Opp:- Vinaynagar Shopping Complex, Vinaynagar Colony, Saidabad, Hyderabad. The parties will be hereinafter referred to as they were arrayed before the trial Court, for the sake of convenience. 3. The brief facts of the case are as follows:- The plaintiff – Smt. S. Yadamma is the absolute owner of the suit schedule premises. She constructed the premises in the year 1990. At the time of construction of the building, the defendant – Sharda Devi Goel, approached her to let out two Mulgies, viz., mulgi numbers 2 and 3 in the ground floor. Accordingly, the suit schedule premises was let out to the defendant as a single tenement and both the plaintiff and the defendant entered into an agreement of Rental Deed dated 01.06.1990, which is marked as Ex.A.1. Initially, the monthly rent was agreed to be Rs.1,500/- and the duration of the tenancy was 11 months commencing from 01.06.1990 and it was agreed that the rent should be enhanced by Rs.30/- every year in the event of renewal. Time to time, the rent was enhanced and the monthly rent, as on the date of filing of the suit, was Rs.1,890/-. At the time of execution of Ex.A.1 – Rental Deed, an amount of Rs.1,00,000/- was deposited with the plaintiff as refundable deposit, free of interest, payable at the termination of the tenancy and the lease is terminable by one month notice issued by either party to the Rental Deed and accordingly, an amount of Rs.4,500/- was also deposited as advance rent for three months by the defendant. The rents were paid for the suit schedule premises under a single cheque and as a single tenement up to May, 2000. Since then, the defendant started issuing two cheques towards rent of the suit schedule premises and when the plaintiff questioned the defendant about the same, the defendant stated that she has income tax problem and as per the advise of her auditor, she was issuing two cheques and requested the plaintiff to oblige her. Not suspecting the bonafides of the defendant, the plaintiff accepted the rents in two cheques till June, 2002. In the month of June, 2002, the plaintiff requested the defendant to vacate the suit schedule premises for bonafide requirement on the ground that her husband has taken Voluntary Retirement and her two major sons were unemployed and that they need the suit schedule premises for setting up their own business. The defendant refused to vacate the premises and the plaintiff got issued a legal notice on 11.09.2002 taking a false plea that the suit schedule premises covering the two mulgies are two separate tenements to attract the jurisdiction of the Rent Controller. When the defendant had sent the rent through Money Order dated 04.10.2002, the plaintiff received the same, but subsequently, the plaintiff did not receive any money orders. Again on 31.05.2003, the defendant has issued two legal notices calling upon the plaintiff to inform her bank account particulars to enable her to deposit the rents and when the plaintiff approached the defendant through her husband and proposed settlement amicably, the husband of the defendant demanded an amount of Rs.5,00,000/- for vacating the suit schedule premises and therefore, there could not be any amicable settlement and thus, the defendant filed R.C.Nos. 300 of 2003 and 301 of 2003 on the file of the II Additional Rent Controller, Hyderabad, and those cases were allowed with an observation ‘without prejudice to the contentions of the parties’ and the plaintiff got issued legal notice on 14.08.2003 under Section 106 of the Transfer of Property Act terminating the tenancy and the defendant, though issued reply notice, did not vacate the suit schedule premises and, therefore, the plaintiff filed the suit. 4. The defendant filed written statement and the specific case of the defendant is that the two mulgies were separately let out to her and that they were not let out as a single tenement, as alleged. It is her further case that as per the understanding between the parties, the rent shall be enhanced by Rs.15/- every year for each mulgi but not Rs.30/-, as alleged, and the rent per each mulgi on the date of filing of the suit is Rs.945/- per month. It is also her case that a sum of Rs.50,000/- was paid towards deposit along with three months advance rent to the plaintiff. The defendant had specifically denied that both the mulgies are required by the plaintiff for her bonafide requirement. The defendant has referred to the circumstances which lead her to file the above referred Rent Control petitioners. The specific case of the defendant is that since the rent for the said two mulgies is below Rs.1,000/- and the premises is more than ten years old, the Civil Court has no jurisdiction to entertain the suit since it is governed by the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, the Act). 5. On behalf of the plaintiff, the plaintiff herself was examined as P.W.1, P.Ws.2 and 3 were examined and Exs.A.1 to A.19 were marked. On behalf of the defendant, one Suresh Kumar Goel was examined as D.W.1 and Exs. B.1 to B.47 were marked. 6. The trial Court framed necessary issues. The trial Court, holding that it is mentioned in the Rental Deed that the tenant shall pay a sum of Rs.750/- as monthly rent for each mulgi and that the total monthly rent for both the mulgies is Rs.1,500/- and that there is no mention in Ex.A.1 – Rental deed that two mulgies were given as one unit without any partition wall and that there is no proof to show that the two mulgies were treated as single tenement and that the plaintiff accepted two separate cheques issued by the defendant and that basing on the clauses of Ex.A.1 – Rental Deed, the jurisdiction of Civil Court cannot be conferred or waived and that if the rent is below Rs.1,000/-, the jurisdiction is vested with the Rent Controller, returned the plaint. 7. On appeal by the defendant, the lower appellate authority, holding that there was only one Rental Deed in respect of two mulgies and that the rent fixed was Rs.1,500/- for both the mulgies, i.e., Rs.750/- per each mulgi and that the specification of those rents at Rs.750/- per month for each mulgi was only for the purpose of calculation of rents and does not indicate the mind of the parties to let out the mulgies as separate units and that there was single deposit pertaining to single tenement and that the term of enhancement of rent of Rs.30/- per month for both the mulgies and that there is no separate wall seen between the two mulgies which support the case of the plaintiff and that as per the definition of the word ‘building’ under the Act, if the entire building is given as single unit irrespective of the portions and mulgies, all the portions of the building come under the definition of the word ‘building’ stipulated in the Act and, therefore, the Civil Court has jurisdiction to entertain the suit. Holding so, the lower appellate authority admitted the plaint and directed the trial Court to proceed with the suit. 8. The main contention of Sri Pramod Kumar Kedia, learned counsel for the appellant/defendant is that the trial Court has properly appreciated the evidence on record and that the lower appellate authority, based on the misconception of facts and law and without proper appreciation of the evidence on record, has directed the trial Court to admit the plaint. It is also his submission that the lower appellate authority has failed to take into consideration the fact that the plaintiff has let out two mulgies specifically for Rs.750/- per each mulgi per month. It is also his submission that the defendant had instituted two separate rent control proceedings and those proceedings have attained the stage of finality and that the Rent Controller has given permission to the defendant to deposit the rents separately into the Court. It is also his submission that the plaintiff herself had admitted that she has been receiving the rents separately and that she did not issue reply to the notices issued by the plaintiff and that the lower appellate authority has failed to appreciate the evidence in proper perspective. It is also his submission that entire evidence has to be looked into and not one or two sentences of the evidence of the witnesses. It is also his submission that the lower appellate authority has mainly relied upon the definition of the word ‘building’ enshrined in the Act without considering the facts of the present case. He has also referred to the evidence of P.W.1, wherein, she had admitted that there are separate shutters to both the mulgies and that she has constructed six independent mulgies in the said building. 9. In support of his contentions, learned counsel for the appellant has relied on the judgment in the case between Boodireddy Chandraiah Vs. Arigela Laxmi[1], wherein, the general principles to be applied for determining the question of law came up for discussion and it was held as follows:- “An inference of fact from the recitals or contentions of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.” 10. Learned counsel has also relied upon the judgment in the case between Bondar Singh Vs. Nihal Singh[2]. In that case, the plaintiff therein filed a suit for declaration that they became owners of the suit lands. The main question that arose for consideration in that case was whether the plaintiffs had perfected their title to the land by adverse possession. The plea of the sub- tenancy was not raised in the written statement nor any such issue was framed by the trail Court. No particulars of alleged sub-lease were given. In the above circumstances, it was held that the defendants cannot build up case on the sub-tenancy. In that case also, the principles with regard to entertaining the Second Appeal under Section 100 C.P.C. were discussed. In the circumstances of the case, it was held as follows:- “If the findings of the subordinate Courts on facts are contrary to the evidence on record and are perverse, such findings can be set aside by the High Court in appeal under Section 100 CPC. A High Court cannot shut its eyes to perverse findings of the Courts below.” 11. Learned counsel had also relied upon the judgment in the case between Radha Nath Seal (dead) by LRs Vs. Haripada Jana[3] in support of his contentions, wherein, it was held as follows:- “Where the first appellate Court failed to consider the material evidence in shape of documents and making a good deal of assumptions of facts, in such circumstance, the High Court can interfere.” 12. Learned counsel had also relied upon the judgment in the case between Jagdish Singh Vs. Natthu Singh[4], wherein, more or less the same preposition, as in the case of Radha Nath Seal (3 supra) was laid down. 13. Learned counsel had also relied upon the judgment in the case between C.Cheriathan Vs. P.Narayanan Embranthiri[5] in support of his contention that a document must be read in its entirety. In that case, it was held as follows:- “A document, as is well known, must be read in its entirety. When character of a document is in question, although the heading thereof would not be conclusive, it plays a significant role.” 14. Learned counsel had also relied upon the judgment in the case between Parimal Vs. Veena Alias Bharti[6], wherein, it was held as follows:- “The first appellate Court should not disturb and interfere with the valuable rights of the parties which stand crystallised by trial Court’s judgment, without opening the whole case for rehearing, both on question of facts and law.” 15. Learned counsel had also relied upon the judgment in the case between M/s.Rawalmal Naraindas and Sons Vs. B.Amarnath and another[7]. In that case, the appellant’s firm was granted lease in a unit of the ground floor of the building. The co-owner of the premises filed a petition for eviction of the appellant’s firm on the ground of bonafide requirement. In the revision, it was contended that the landlord, being in occupation of another non-residential building, was not entitled to seek eviction on the ground of bonafide requirement under Section 10(3)(a)(iii) of the Act. It was further contended that the building should be treated as non-residential premises and not as a residential premises. It was further contended that as the landlord was allegedly carrying on the business in another unit bearing separate door numbers situated in the first floor and second floor of the building, the whole building was to be considered as non-residential building and the landlord is not entitled to the order of eviction against the appellant’s firm. In the circumstances, it was held as follows:- “Where the building, a unit with separate door number on the ground floor was leased out to the tenant was admittedly a non- residential ‘building’, provisions of Section 10(3)(a)(iii) of the Act and not Section 10 (3) (c) could be attracted, for enabling the landlord to demand the possession of the building. Section 10(3)(c) of the Act would apply in a case where out of the leased premises a part thereof is in occupation of the landlord who in that event can apply to the Rent Controller for an order directing the tenant to put him in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he was carrying on, as the case may be, Part of the building referred to in clause (d) of the sub-section 3 of the Section 10 of the Act has to be understood in the context of the definition of the word ‘building’ under Section 10 of the Act has to be understood in the context of the word building under Section 2(iii) of the Act. If the building within the meaning of Section 2(iii) is indivisible, the same has to be taken as an entity for the purpose of deciding the issue regarding eviction and cannot be further split or its scope widened by having regard to the loose general meaning of the word ‘building’. The tenant would not be justified in contending that the entire building was a single unit though having different door numbers for different portions of the building.” 16. Per contra, Sri A.Ananda Rao, learned counsel for the respondent/plaintiff submitted that though there are two mulgies, there is no partition wall between these two mulgies and admittedly, there was a single tenement and a single advance and that a single cheque was issued for more than ten years and these circumstances go to show that the entire premises was leased out as a single tenement. Referring to the clauses of Ex.A.1 – Rental Deed, it is his submission that there is only one schedule to the lease deed. It is also his submission that merely because there are two mulgies, it cannot be said that they were separately leased out. It is also his submission that the plaintiff initially believed the version of the defendant that as per the advise of her auditor, for some adjustments, she was sending two cheques separately and this circumstance alone is sufficient to attract the Doctrine of Acquiescence. 17. In support of his contentions, learned counsel has relied upon the judgment in the case b e tw e e n B.Artho Thyadi (died) by L.R.s Vs. G.Kamarriju[8]. In that case, the definition of the word ‘building’, as enshrined in the Act, came up for consideration. In that case, the landlord sought eviction of the tenants who were occupying three different portions of the house on the ground of wilful default in payment of rent and for bonafide requirement of the landlord for his personal occupation for doing his business. There were three different advances. The question that came up for consideration is whether the landlord can simultaneously seek eviction of the tenants in more than one non-residential units of accommodation, even though all the units may be structurally located in the same building and whether for the purpose of Section 10(3)(a)(iii) of the Act, a part of the building can be taken to be a building, as defined under Section 2(3) of the Act. This Court, after referring to Section 10(3)(a)(i), 10(3)(a) (ii) and 10(3)(a)(iii) of the Act, held as follows:- “…under Section 10(3)(a) (iii), a landlord who is not in possession of any non-residential building of his own or to the possession of which he is entitled can simultaneously seek eviction of tenants in more than one non- residential unit of accommodation where all the unit are structurally located in the same building. The landlord can seek eviction of the entire building or any one or more than one units of the same building. While portion is a separate building, the entire unit consisting of several portions also can be taken as a building depending upon the context.” 18. It was further held as follows:- “The definition of a building contained in Section 2 (iii) would only mean that a part of the building which has been let out or which is to be let out separately can also be construed as a separate and independent building without reference to the other portion or portions of the building. In fact, Section 2 starts by saying ‘unless the context otherwise requires’. The definition is thus subject to the contextual position.” 19. Thus, it is clear that where the context requires, a part of the building may be treated as one unit of entire building or two or three parts, or even two buildings may be treated as one unit. 20. Learned counsel had also relied upon the judgment in the case between Devi Pershad Vs. Smt. Rajava Desai[9], wherein, this Court held that where three mulgies bearing separate door numbers were leased out, the user of the premises is the determining factor. In that case, the tenants were using the entire premises for common purpose for running the business of Bar and Restaurant. In the circumstances, it was held that there is no reason to hold that the three mulgies constitute separate units. 21. Learned counsel has also relied upon the judgment in the case between U.R.Virupakshaiah Vs. Sarvamma[10], wherein, the Apex Court held as follows:- “…the High Court, without recording sufficient reasons, could not allow the appellant to raise absolutely a new contention which was beyond the pleadings of the parties.” 22. The substantial question of law that was framed by this court at the time of admitting this Second Appeal is whether the lower appellate court was right in not considering the Doctrine of Acquiescence and the practice prevailing between the parties concerning to the terms of tenancy since more than four years prior to the institution of the suit. 23. The crux of the issue is whether the two mulgies were leased out by the plaintiff to the defendant as a single unit or two separate units. It appears that Ex.A.1 – Rental Deed dated 01.06.1990 is the most important document that determines the main issue, which reads as follows:- R E N T A L D E E D This Rental Deed is made and executed on this day 1st day of June, 1990 by and between: Smt. S. Yadamma, W/o. Sri S.Isthary aged about 40 years, resident of H.No.17-1-383/102/1, Vinaya Nagar Colony, Saidabad, Hyderabad (hereinafter called Land lady which term shall wherever the context so requires include her heirs, executors, administrators, legal representatives, assigns) of one part. Sharda Devi Goel, W/o. Suresh Kumar Goel, aged about 27 years, resident of H.No.21-7-429, Shekar Kotha, Hyderabad – 500 002 (hereinafter called as the tenant of the second part) Whereas tenant carry on a cloth type variety shop its name ___________________ and tenant rquires the mulgies bearing No.s2 and 3, H.No.17-1-383/102/1, Vinaya Nagar Colony, Saidabad, Hyderabad, for which the Land Lady agreed to let out the said mulgies wand which is only including readymade garments and cloth business. 1. The tenant shall pay a sum of Rs.750/- (Rupees seven hundred and fifty only_ as monthly rent for each mulgi and the total rent for both the mulgies is Rs.1,500/- (Rupees one thousand five hundred only). 2. The tenant has deposited Rs.1,00,000/- (Rupees one lakh only) with the Land Lady. The said deposit shall be returnable on the termination of tenancy and afte handed over the vacant portion of the scheduled mulgies to the Land Lady in good and favourable condition. This deposit amount of Rs.1,00,000/- (Rupees one lakh only) shall not bear any interest. 3. The tenant hereby undertake to pay all consumption charges such as Electricity, etc., except Municipal Tax of the said mulgies in the name of the land Lady and handed over all the receipts, to Xerox copy. 4. The tenancy shall be inforce for a period of 11 (Eleven) months from the 1st day of June, 1990 and both the parties can extend the period of tenancy after mutual consent. 5. This agreement shall be renewable after expiry of the tenancy period by mutually consent by increasing Rs,30/- of monthly rent for every year (Thirty Rupees). 6. The above said rent shall be paid on or before the 5th of the each calendar month and under any circumstances it should not be postponed and without any default. 7. This lease shall be terminable by one month notice by Registered Post with acknowledgement due issued either by Land Lady or Tenant as the case may be under the provisions of the transfer of property Act. 8. The tenant shall not conduct any business other than the cloth business. 9. The tenant shall not sub-lease to the premises or any part of thereof. 10. The tenant shall maintain the premises in a clean and sanitary condition. 11. The tenant shall ensure that no damage is caused to the premises or any portion thereof. If any damage is caused the tenant shall be liable to make good to the owner the cost of getting right such damage. 12. The tenant shall not make any additions or alterations to the premises without the consent of the owner. 13. The tenant shall permit the owner of any person authorised by her to enter the premises for the purpose of inspection at reasonable and working hours. 14. The tenant shall not object or to block the open space in front of the mulgies which causes inconvenience to the remaining portions of the Ground Floor and the Ist floor of the building. 15. The tenant shall not object or any case obstructs the construction that the owner proposes to undertaken to upper stories of the shops. 16. That the lessee has this day deposited an amount