IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTY FIRST DAY OF OCTOBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1266 of 2011 Between: M/s. Hindustan Petroleum Corporation Ltd. .. Appellant AND G. Sulbha & 14 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1266 of 2011 JUDGMENT: The second appeal is directed against the judgment and decree in A.S.No.87 of 2006, on the file of the II Additional District Judge’s Court (Fast Track Court), Mahabubnagar, dated 30.09.2010, by which the dismissal of the appeal without costs resulted in confirmation of the judgment and decree in O.S.No.258 of 2001, on the file of the Junior Civil Judge’s Court, Mahabubnagar, dated 01.09.2006, decreeing the suit and directing the first defendant to vacate the property within three months after removing the structures and also to pay rents with interest at 12% per annum from the date of the suit till the date of decree at Rs.2,160/- per month. 2. The parties are referred to herein as they are arrayed before the trial Court. 3. The suit was filed by plaintiffs 1 to 8 seeking eviction of the first defendant corporation from the suit schedule property and to put the plaintiffs in vacant possession by removing the structures therein. The plaintiffs also sought for a direction for payment of arrears of rent from the date of the suit till the date of realization or mesne profits to be determined on a separate application. The plaintiffs claimed that the property was allotted to G. Sadasiva Rao in partition of the ancestral properties between him and his uncle G. Ramachander Rao in 1965, before which G. Ramachander Rao, as the Kartha of the family, gave the property on lease to the first defendant corporation on 09.08.1960 under a registered Lease Deed for a rent of Rs.60/- per month for 20 years. The lease was renewed for a further period of 20 years by the lessee invoking the statute applicable to it. After the expiry of the lease, the plaintiffs did not accept any rents and ownership of G. Sadasiva Rao over the suit property by virtue of partition was established in O.S.No.134 of 1987, on the file of the Senior Civil Judge’s Court, Mahabubnagar. The plaintiffs issued a notice of eviction on 23.06.2000 and, hence, they sought for the suit reliefs. The first defendant contested the suit denying any knowledge about the partition between G. Sadasiva Rao and G. Ramachander Rao and after the death of G. Ramachander Rao, no person came forward to receive the rents. In O.S.No.134 of 1987, the defendant corporation sought for permission to deposit the rents pending the suit. The rent amounts were kept in a separate account by the first defendant and in O.S.No.134 of 1987, G. Sadasiva Rao was decided to be the owner of the suit property, an appeal against which was also dismissed. Therefore, the first defendant denied any relationship of landlord and tenant between it and the plaintiffs and desired the suit to fail. 4. Defendants 2 to 8 were brought on record as the legal representatives of G. Ramachander Rao and the suit against them ended in a compromise before the trial Court on 28.06.2005. 5. The trial Court framed issues about the ownership of the property, nature of possession of the first defendant, maintainability of the suit as framed and the entitlement of the plaintiffs for the suit reliefs. 6. The trial Court examined P.W.1 and D.W.1 during trial and marked Exs.A-1 to A-12. 7. In its judgment, the trial Court firstly concluded that in the light of the judgment in O.S.No.134 of 1987 and the compromise entered into by defendants 2 to 8 in this suit, the first defendant, who is a party to both the suits, is bound by the conclusion that G. Sadasiva Rao was the owner of the property. The trial Court also concluded that in view of the admitted Lease Deed-Ex.A-1 and its renewal under the statute for another 20 years, the first defendant is proved to be a tenant holding over. The trial Court further considered the maintainability of the suit for eviction by the plaintiffs with reference to the precedents cited before it and concluded that when the renewed period of lease expired, the first defendant has no right to continue in possession irrespective of the controversy about the notice under Section 106 of the Transfer of Property Act, 1882 (for short, ‘the Act’). The arrears of rent were noted to be admitted and, therefore, the trial Court decreed the suit as stated above. 8. In the first appeal, the first Appellate Court considered, in the impugned judgment, the rival contentions and evidence all over again and considered whether the plaintiffs established the relationship of landlord or tenant between them and the first defendant and whether there was a legal and valid notice under Section 106 of the Act. The first Appellate Court also came to the same conclusion that the property fell to the share of G. Sadasiva Rao in the family partition in 1965, as confirmed in O.S.No.134 of 1987 and as compromised by defendants 2 to 8 in this suit itself. The first Appellate Court consequently upheld the relationship of landlord and tenant between the plaintiffs and the first defendant and the first Appellate Court also concluded that the issuance of notice under Section 106 of the Act under Ex.A-12 was not contradicted by the first defendant and, therefore, the same also has to be held in favour of the plaintiffs. Consequently, the first Appellate Court confirmed the findings of the trial Court in dismissing the appeal without costs. 9. The first defendant seeks to contend in the second appeal that the notice under Section 106 of the Act is defective and when the defendant corporation, the tenant, since 1960 is paying rents regularly, it is entitled to a reasonable notice. The evidence was not appropriately appreciated by the Courts below and substantial questions of law involved in the second appeal are about the true service of notice under Section 106 of the Act, the requirement of notice under Section 106 of the Act and the validity of such notice when the relationship of landlord and tenant itself is disputed. The appellant, therefore, desired the impugned judgment and decree to be reversed. 10. Heard Sri Thoom Srinivas, learned standing counsel for the appellant corporation at the stage of admission. 11. The point for consideration is whether any substantial questions of law are involved in the second appeal. 12. Section 100 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C’), and Order XLII Rule 2 thereof mandate that any substantial questions of law involved in a second appeal have to be formulated by the High Court before admission and it will be only on the satisfaction of the High Court about involvement of such substantial questions of law that a second appeal can be entertained. 13. In the present case, the facts are not in dispute and cannot be in dispute. The suit schedule property, admittedly, belongs to the family of G. Sadasiva Rao and G. Ramachander Rao and was taken on lease by the first defendant from G. Ramachander Rao, the then kartha of the family. The subsequent oral partition between the members of the family in which the suit property was claimed to have fallen to the share of G. Sadasiva Rao was upheld by the civil Court in O.S.No.134 of 1987 and stood further confirmed by the compromise entered into by defendants 2 to 8 with the plaintiffs in this suit itself. The conclusion of the Courts below about such recognition of the ownership of G. Sadasiva Rao to the knowledge of the first defendant is in tune with the clear-cut evidence based on the facts and admittedly, the period of the original lease and the period of the renewed lease by invoking a statute have expired. The lease, thus, came to be determined by efflux of time under Section 111 (a) of the Act and the lessors have a right to seek eviction of the lessee on the determination of the lease irrespective of any determination of the lease under Section 111 (h) of the Act by issuing a notice under Section 106 of the Act. Apart from the fact that the first Appellate Court, the final Court of fact finding, concluded due service of notice under Section 106 of the Act to have been proved, the entitlement of the plaintiffs to seek vacant possession of the suit property from the corporation, therefore, cannot be doubted. 14. The questions sought to be raised were about proper service of notice under Section 106 of the Act which were found, as a matter of fact, against the first defendant by the first Appellate Court and the fact of the period of lease and the renewed lease having expired being not in dispute, the absence of any necessity for notice under Section 106 of the Act requires no elaboration. The existence of relationship of landlord and tenant between the plaintiffs and the first defendant cannot be in doubt when the plaintiffs being the legal representatives of the deceased G. Sadasiva Rao is not in question. Thus, while the questions sought to be raised are questions of fact and not questions of law, even otherwise, they did not raise any substantial questions of fact or law in the light to concurrent findings of fact by the trial and the first Appellate Courts and the second appeal, therefore, cannot be entertained. 15. Sri Thoom Srinivas, learned standing counsel for the appellant submitted that the appellant corporation is running the petrol pump in the suit property since 1960 and it was granted only three (3) months’ time to vacate by the trial Court, while the first Appellate Court did not grant any time at all. The learned counsel contended that the appellant corporation requires a reasonable time to secure a suitable alternative place for relocating the petrol pump in the area for the convenience of the public at large, apart from the time required for removing the structures installed in the suit site without effecting the safety of the people around. The appellant corporation is a public corporation and its services through the petrol pump are for the benefit of the general public and while balancing the rights of the plaintiffs to get possession early and the needs of the appellant corporation vis-à-vis, the interest of the public, a reasonable time can be considered even at the stage of hearing the second appeal on admission in the interests of justice. Taking an over all view of all the facts and circumstances, grant of six (6) months’ time from today may sub-serve the ends of justice. 16. Therefore, the second appeal is dismissed without costs at the stage of admission, but the appellant corporation is granted six (6) months’ time from today to remove the structures in the suit schedule property and deliver vacant possession of the same to the decree holders. ___________________ G. BHAVANI PRASAD, J Date: 31st October, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1266 of 2011 Date: 31st October, 2011 KL