IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SEVENTH DAY OF JANUARY, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 347 OF 2001 BETWEEN: The President (Union of India) of India, Represented by Superintendent …APPELLANT/DEFENDANT AND Jupudi Mangaraju (Died) Jupudi Jagannadha Rao. …RESPONDENT/PLAINTIFF The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 347 OF 2001 JUDGMENT: The defendant in O.S.No. 21 of 1992 on the file of the Court of Additional Senior Civil Judge, Rajahmundry, who is aggrieved by the decree of eviction and payment of damages, is the appellant herein. 2. The suit schedule property belongs to the plaintiff to an extent of 4227 square feet and it was given on rent to the defendant at the rate of Rs.4,920/- and the tenancy was from 9th of every month to 8th of the following month. The lease was originally entered into had expired by 08-07-1986 and the defendant continued as tenant-holding over by paying a rent at the rate of Rs.4,920/-. From 08-07-1986 a default was committed and it was paid subsequently. As the plaintiff wanted the premises for personal occupation, the defendant was requested to vacate the premises and the defendant was promising, but did not do so. As such, a notice was given on 22-10-1991 demanding possession of the property by 09-11-1991 terminating the tenancy and for damages for use and occupation at the rate of Rs.10,000/- per month. As the defendant has not vacated nor paid the amount, the suit was filed. 3. The defendant i.e., appellant herein, filed written statement contending that the suit is not maintainable. The notice for eviction is defective and there is no valid quit notice. The defendant would be put to hardship in case the eviction is ordered. The claim for mesne profits was also disputed. 4. On the basis of the above pleadings, the following issues were framed for trial: 1) Whether the description of the defendant is incorrect and not legal? 2) Whether the quit notice is legal and valid? 3) Whether the plaintiff is entitled for eviction of the defendant from the suit building? 4) Whether the plaintiff is entitled for damages for use and occupation as claimed in the plaint? 5) To what relief? 5. On behalf of the plaintiff, PWs. 1 to 3 were examined and marked Exs.A-1 to A-9. On behalf of the defendant, DW-1 was examined. 6. After considering the evidence on record, the learned Additional Senior Civil Judge decreed the suit of the plaintiff and aggrieved by the said judgment the present appeal is filed. 7. Now the points that arise for consideration are: 1) Whether the decree of eviction passed by the learned Additional Sessions Judge is legal and sustainable? 2) Whether the grant of mesne profits at the rate of Rs.10,000/- per month is legal and valid? 3) Whether the judgment and decree passed by the Additional Senior Civil Judge is legal and sustainable? 8. POINTS: So far as the relief of eviction is concerned, the learned Assistant Solicitor General represents that the premises in question has been vacated in the month of February, 2001 and the defendant is no longer in occupation of the premises. The suit was resisted on the ground that there was no proper quit notice alleging that the tenancy is from month to month and the requirements of Section 106 of the Transfer of Property Act were not complied with. It is needless to say that in view of the amendment to Section 106 of Transfer of Property Act, any defective notice will not non-suit the plaintiff and the said contention of the appellant cannot be taken as valid. If once the tenancy is from month to month and the notice to quit has been given, the continuance of the possession by the tenancy cannot under an agreement, it can only be by virtue of tenancy of suffering. If such is the case, he has to pay the damages for use and occupation and not the agreed rent, which is payable under an agreement of tenancy. Evidently, the rent for the premises has been fixed in the year, 1986 and there was increase in the rental values and also utility of the building. The learned Additional Senior Civil Judge has taken into consideration, the evidence of DW-1 and also the evidence of PWs. 2 and 3, in fact, the DW-1, who is the employee of the appellant has admitted that in the year, 1991 in the suit locality, the rent is about Rs.6/- per square foot for carpet area and if that is taken into consideration, it will be more than the claim made by the plaintiff. Therefore, the learned Additional Senior Civil Judge found that the damages for use and occupation claimed by the plaintiff is reasonable. 9. Therefore, in view of the above circumstances, there are no grounds to interfere with the finding of the lower Court in fixing the damages for use and occupation at the rate of Rs.10,000/- per month. So far as even the mesne profits are concerned since the period of occupation after the decree is only for three months, I feel the same amount can be fixed as future mesne profits also without going into any further enquiry as directed by the lower Court. Accordingly the points are answered. 10. In view of the above modification, the appeal is dismissed. Each party shall bear their own costs. Date: 27-01-2011. ________________________ N.R.L.NAGESWARA RAO,J INL THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 347 OF 2001 January 27, 2011