IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU SECOND APPEAL NO.1175 OF 2009 Between : G.Gopal Naidu ... APPELLANT A N D N.Narendra Naidu …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL NO.1175 OF 2009 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the judgment and decree, dated 20.08.2009, passed in A.S.No.4 of 2008 on the file of Senior Civil Judge, Gooty, whereunder and whereby, the judgment and decree, dated 30.06.2008, passed in Original Suit No.78 of 2004 on the file of the Junior Civil Judge, Tadipatri, were confirmed. 2. The appellant herein is the defendant and the respondent herein is the plaintiff, in the trial Court. 3. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed before the trial Court. 4. The brief facts are, the plaintiff is owner of the suit schedule house bearing No.6/40. He let out the same to the defendant on a monthly rent of Rs.500/-, which is payable on or before 5th of every month. He further stated that the defendant defaulted in payment of rent from 01.01.2002. In spite of repeated demands, the defendant has not paid any rent and the plaintiff requires the premises for his personal occupation. Therefore, he got issued legal notice, dated 25.01.2004, to the defendant, and in turn, the defendant got issued reply notice with all false allegations and also denying the plaintiff’s title and setting his own title over the suit schedule property and admitting the payment of rent. His further case is that the plaintiff filed the pattadar pass book, ration card, house hold certificate and adangal to show his ownership over the suit schedule property. Hence, the suit. 5. The defendant filed written statement denying the averments made in the plaint and contending that the plaintiff is not the absolute owner of the suit schedule property and he never taken the suit house on a monthly rent of Rs.500/-. He further stated that he never defaulted in payment of rent since 01.01.2002. His further case is that originally the plaintiff executed an unregistered agreement of sale, dated 27.05.2002 in his favour agreeing to sell the house bearing No.6/40 corresponding to new number 6/26-B for a sale consideration of Rs.86,000/- and he paid a sum of Rs.43,000/- as an advance on 27.05.2002 itself and the balance amount has to be paid by him to the plaintiff on or before 26.11.2002 with interest @24% per annum and on the same day the plaintiff delivered possession of the house bearing No.6/26 B. Since then he is in possession and enjoyment of the said house till today. He further stated that he made several demands calling upon the plaintiff to register the house in his name, but suppressing all above facts, the plaintiff filed unjust suit only to harass the defendant. His further case is that he is the owner of the house bearing No.6/40 and as such, there is no need to pay any rent to the plaintiff and hence, he prays to dismiss the suit. 6. On the basis of above pleadings, the following issues have been settled by the trial court for trial: “1. Whether the plaintiff is entitled for the relief of eviction of the defendant from the suit schedule house as prayed for? 2. To what relief”? 7. During trial, the plaintiff himself examined as P.W.1 and also got examined P.W.2 and got marked Ex.A.1 to A.6. On behalf of the defendant, the defendant himself was examined as D.W.1 and also got examined D.W.2 and got marked Ex.B.1. 8. The trial Court after considering the evidence on record, came to the conclusion that the defendant is the tenant of the plaintiff and he is liable for eviction and accordingly, ordered for eviction. On appeal, the said judgment and decree were confirmed by the first appellate Court. Challenging the same, the present Second Appeal is filed. 9. Learned counsel for the appellant raised the following substantial questions of law: “a) Whether any document to show that the respondent/plaintiff let out his house to appellant there is prevents or contract between the plaintiff and defendant as landlord and tenant. b) The Court below erred in considering that whether the plaintiff is filed any proof of evidence to show that the appellant is tenant of house bearing No.6/26-B. b) Whether the Court below considered the ground that the termination of the lease in the middle of the month is not in accordance with Section 106 of Transfer of Property Act. c) The lower Court erred in discussing the evidence about Ex.B.1 document, dated 27.02.2002 alleged to have executed by the respondent, instead of looking whether the plaintiff/respondent adduced any evidence to prove his contention. d) Whether the respondent/plaintiff has proved his contention by way of any evidence to show that is these any relationship of landlord and tenant between the appellant and respondent”. 10. Learned counsel for the appellant /defendant contended that by virtue of Ex.B.1 unregistered sale agreement, the appellant was in possession and enjoyment of the property; that there is no need to pay any balance amount; that in pursuance of agreement of sale, the balance of sale consideration has to be paid to the respondent/plaintiff on or before 26.11.2002; that the rent payable is only Rs.500/- per month and as such the suit is not maintainable. 11. Heard the learned counsel for the respondent. 12. The case of the respondent/plaintiff is that he let out the premises to the appellant/defendant on a monthly rent of Rs.500/-. No doubt P.W.1 did not file any document to show that he let out the house to the defendant. But the defendant admitted that he is in continuous possession and enjoyment of the property. The evidence of P.Ws.1 and 2 coupled with Ex.A.1 legal notice got issued under Section 106 of Transfer of Property Act 1882 (for short, ‘the Act’) would clearly go to show that the appellant is the tenant in respect of the premises in question and he committed default in payment of rent. Admittedly, the appellant received the notice got issued by the respondent. The appellant did not specifically state in Ex.A.3 reply notice, dated 06.02.2004, that the respondent executed an unregistered agreement of sale in his favour, and by virtue of Ex.B1, the appellant is in continuous possession and enjoyment of the property. 13. On the other hand, the case of the defendant is that in pursuance of Ex.B1, he paid an amount of Rs.43,000/- as an advance and paid the remaining amount on 26.11.2002 and thereafter, the respondent delivered the possession of the house to the appellant. But, to show whether he paid the remaining balance sale consideration on 26.11.2002, there is no document to prove the same. The appellant has not stated in the earliest opportunity about the alleged agreement of sale under Ex.B.1 in Ex.A.3 reply notice. Therefore, the trial Court came to the conclusion that Ex.B.1 was brought into existence during trial to suit the case of the appellant. 14. The plaintiff has denied the signature in Ex.B.1 and therefore, it is the duty of the appellant to prove that Ex.B.1 was executed by the plaintiff. When the plaintiff has denied his signature on Ex.B.1, in all fairness, the appellant ought to have requested the Court to send Ex.B.1 with the admitted signatures of the respondent to the expert for comparison and opinion. The defendant has not taken any such steps to send the same. The evidence of P.W.2 who is an independent witness would clearly disclose that the respondent is the owner of the suit schedule premises and he let out the premises to the defendant on a monthly rent of Rs.500/-, and thereafter the defendant committed default in payment of rent from 01.01.2002. Nothing has been elicited in the cross-examination of P.W.2 to doubt his testimony. He has no enmity or animosity against the defendant to speak false against him. 15. According to D.W.1, Ex.B.1 was executed by the respondent. But, execution of Ex.B.1 does not confer any title to the defendant so long as the regular sale deed is executed in his favour. Though D.W.2 who is said to be present at the time of alleged agreement of sale stated that an amount of Rs.43,000/- was paid at the time of execution on 26.11.2002, he is not a party to the document. Having obtained Ex.B.1, the defendant did not obtain any receipt or got an endorsement on Ex.B.1 showing the payment of remaining balance of sale consideration, which was paid on 26.11.2002. Therefore, his evidence is not much helpful to the appellant. Therefore, the trial court has not placed any reliance on the evidence of DWs.1 and 2. Admittedly, the appellant is in possession of the property owned by the respondent. Defendant has set up a false plea so as to avoid payment of rents and he has not stated in which capacity he is residing in the premises in question. Even Ex.B.1 does not indicate that the appellant is entitled to be continued in possession in pursuance of Ex.B.1 without paying rents. Therefore, if Ex.B.1 is believed, then it can be said that the defendant is only a tenant in respect of the suit schedule premises and he cannot squat over the property as he likes. The quit notice issued by the respondent is in accordance with law and once the notice was issued in terms of Section 106 of the Act, the appellant is bound to vacate the premises in question. That is the reason why the Courts below rightly held that the appellant has to vacate the premises. None of the findings is shown to be perverse or contrary to law. The findings are based upon proper appreciation of evidence on record. There is no substantial question of law so as to admit the second appeal. 16. The contention of the learned counsel for the appellant that the eviction suit has no application in view of the fact that the rent payable is only Rs.500/- per month cannot be accepted at this stage, because there is no pleading to that effect and there is no evidence to substantiate the same. In the absence of pleadings and evidence, the said point cannot be raised for the first time at the time of admission of Second Appeal. Therefore, there are no grounds to admit the Second Appeal and accordingly it is liable for dismissal. 17. The landlord is entitled to eject a tenant after notice to quit, unless tenant can prove that he has a right to remain on the premises permanently. 18. It is stated by the learned counsel for the appellant that the appellant is in possession of the property for the last nine years and it is appropriate to give a reasonable time to vacate the premises. Considering the submissions of the learned counsel for the appellant, the appellant is directed to vacate the premises on or before 01.05.2011. 19. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _______________ K.C.BHANU, J FEBRUARY 11, 2011. YVL