IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIFTEENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.782 of 1997 BETWEEN Challa Boyanna (died) and others. …APPELLANTS AND Gunji Chenchaiah and others. …RESPONDENTS Counsel for the Appellants: MR. M.Y.K. RAYUDU Counsel for the Respondents: MR. N. SUBBA RAO – R3 to R 10 The Court made the following: - JUDGMENT: This appeal is by the first defendant, who is resisting the first respondent’s suit O.S.No.218 of 1986 for possession and mesne profits. 2. The brief facts are as follows: (a) The respondent/plaintiff filed the suit alleging that he was assigned Ac.0.03 cents of land in Sy.No.570, Railpet, Bapatla wherein he constructed a small thatched hut. He also constructed another hut adjacent thereto to the southern side. He relies on a temporary patta granted by the then Tahsildar dated 22.11975 in favour of the father of the appellant and claimed that he has been paying house tax demand for the said house under assessment No.594 for several years and relies upon Ex.A1 extract of house tax demand register. He also relied upon Ex.A3 certified copy of No.2 adangal for Fasli year 1390 for Sy.No.570 relating to West Bapatla village to establish that his possession is recognized over the suit schedule property over the entire Ac.0.03 cents, which includes the suit schedule property. While he claimed that the first defendant/appellant requested the respondent/plaintiff to accommodate him with his family in the second hut erected by the plaintiff in lieu of the loan of a sum Rs.400/- taken by the respondent/plaintiff from the appellant/defendant, six years prior to the suit. He allowed the appellant/defendant to occupy the second hut for a period of one year. However, alleging that the defendant is not vacating the said hut after the expiry of the period, the present suit came to be filed. The respondent/plaintiff also relies upon the caveat petition filed by the defendant/appellant wherein the first defendant claimed that the suit schedule site is his own purchased site under an oral agreement for valid consideration and he also claimed that the house is constructed by him, thus apprehending that the appellant/defendant is setting up rival title in himself, the present suit came to be filed. (b) The appellant/defendant filed a written statement denying the allegations and further stated that he is not in permissive possession of the plaintiff but he is in possession as an encroacher of the Government land for several years and that he himself constructed the hut and is residing there by paying house tax. It was also alleged that the defendant has made application to the Government on the basis of his possession for getting patta. 3. On the basis of the said pleadings, both the parties lead oral and documentary evidence. While the plaintiff examined himself as P.W.1, two witnesses – P.Ws.2 and 3. The first defendant examined himself as D.W.1 and defendants 2 to 4 as witnesses. Plaintiff marked Exs.A1 to A7 whereas defendant marked Exs.B1 to B15. 4. In the light of the pleadings of the parties where the plaintiff claims patta from the Government and permissive possession of the defendant in one of the huts constructed by him, primarily, the issues which fell for consideration before the trial Court were: 1. Whether the plaintiff is entitled for possession of the suit schedule property, as prayed for in the plaint? 2. Whether the plaintiff is entitled to future profits at Rs.50/- per month from the date of filing of the suit? 3. To what relief? 5. The evidence adduced on behalf of the plaintiff clearly establishes that he was assigned Ac.0.03 cents of land in which the suit schedule hut is situated and the payment of house tax thereof was evidenced by Ex.A1 as well as Ex.A3 adangal extract. Even before the filing of the suit, the plaintiff issued legal notice Ex.A4 to the defendant, which was not replied to and on the contrary, the defendant set up title in himself denying the title of the plaintiff. On consideration of the evidence, the trial Court answered the issue No.1 in favour of the plaintiff and to the extent of relief of mesne profits, the trial Court was of the opinion that in the absence of evidence with regard to the quantum of mesne profits, the plaintiff was relegated to a separate application under Order 20 Rule 12 of the Code of Civil Procedure, 1908. On appeal, the said decree has been confirmed by the lower appellate Court. Hence, this second appeal. 5. The second appeal was admitted on the following substantial questions of law: 1. When the specific case of the respondent is the he took loan of Rs.400/- from the defendant and to discharge the same he allowed defendant to be in possession of his suit schedule house for an year, is it not a case that comes under A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 in spite of denial of title by the defendant and in the civil court not barred from entertaining the suit for possession by evicting the defendant. 2. When both parties have no title and the suit is based on earlier possession, whether suit is not one under Section 6 of the Specific Relief Act and if so whether suit filed beyond 6months is not barred by time and civil Court entertaining the suit is not contrary to the provisions of Section 3 of the Limitation Act. 3. When the suit land is Government land and Government recognized possession of the defendant and collected taxes from him, whether suit by earlier trespasser is maintainable without impleading the true owner and whether the suit is maintainable without getting the entries in public records corrected.” 6. Learned counsel for the appellant has pointed out to admission of P.W.1 in the cross-examination, which was dealt with by the trial Court in its judgment in the following manner: “…In those circumstances, it is not unnatural and against human conduct for the plaintiff to permit the 1st defendant who is the son-in- law of his junior paternal uncle and who used to reside in the pancha of his junior paternal uncle to occupy the house temporarily. The plaintiff contended that he borrowed certain amount from the 1st defendant and in consideration thereof he permitted the 1st defendant to occupy the suit house. P.W.1 deposed that he was indebted Rs.400/- to 1st defendant and while going to Maharastra state on cooly work at the request of D1 he permitted to occupy the house. In cross- examination, no doubt P.W.1 deposed that he put D1 on rent but the rent was not decided and the rent was not settled. It was suggested by the 1st defendant to the plaintiff that he has not given the site on rent and that himself and D2 colluded together and he filed the suit. It is also suggested to him that D1 need not pay any amount to him. Except the above suggestions, there are no suggestions put to P.W.1 that he was not indebted Rs.400/- to the 1st defendant…” 7. Based on the above, the learned counsel submits that even before the trial court it was argued that if the first defendant is occupying the suit premises on rent, the civil Court would not have jurisdiction and it is only the rent control Court which can decree the possession. He, however, points out that there is no finding of the trial Court on the said aspect. Similarly, the lower appellate Court also noticed the aforesaid contention on behalf of the appellant but has not dealt with the same. Learned counsel, therefore, submits that the said question, if answered in favour of the appellant on the basis of the admission of the respondent/plaintiff, would oust the jurisdiction of the civil Court and as such, the decrees under appeal are liable to be set aside. 8. While it is true that there appears to be an admission of the plaintiff, as above, but even in the said admission the plaintiff does not say about the quantum of rent. I have perused the plaint allegations in which also there is not even a semblance of the relation of landlord and tenant between the plaintiff and the defendant. On the contrary, the plaintiff categorically states that he permitted the first defendant to reside in the second hut i.e. suit schedule hut, being close relative, as the plaintiff had earlier borrowed a sum of Rs.400/- six years prior to the suit. It is also stated that the defendant was allowed to stay for a period of one year and there is no reference to any requirement of the defendant paying rent or any other consideration. The written statement filed by the defendant keeps the matter beyond any pale of doubt and paragraphs 4, 5 and 8 of the written statement, therefore, clearly answers the said controversy, which are as under. 4. This defendant is not in permissive possession. He is not in possession and enjoyment of the schedule property with the permission of the plaintiff. He never obtained possession of the schedule site from the plaintiff. 5. This defendant is in possession and enjoyment of the schedule property since about 8 years with the permission of the Government, to the knowledge of the plaintiff, without any interruption. He occupied the schedule site as an encroacher many years back in the schedule property. This defendant constructed a house with his own money in the year 1980 and is residing therein since then. The said house is in the name of this defendant in the Demand Register of House-Tax in the Bapatla Municipality. This defendant is also paying House-tax to the said house in the schedule site. 8. This defendant submitted several petitions to the Government stating that he occupied the schedule site as an encroachers and that he is in possession and enjoyment of the same and requesting to issue patta in his favour. The M.R.O. Bapatla served a memo dt.2-10-1986 stating that as the schedule site which is in the occupation of this defendant as encroacher needs for passage, permanent patta cannot be issued. It will reveal that the schedule site is occupied by this defendant and it is in possession and enjoyment of this defendant as an encroacher. 9. It is, therefore, evident that the appellant/defendant himself never claimed any tenancy and on the contrary, was claiming his own title over the property as an encroacher and had set up independent right on his own. Further, the respondent/plaintiff also never pleaded such tenancy and it may be that in the cross-examination without realizing the difference between an occupier and a tenant he might have accepted that the defendant was given the property on rent. However, neither it is anybody’s case that the rent was fixed nor it is anybody’s case that any amount was paid by first defendant to plaintiff either monthly or otherwise. The essential ingredient of lease viz., on periodical payment of rent being absent in the present case, it cannot be said that there is any relationship of landlord and tenant between the parities. In that view of the matter, the further contention of the learned counsel for the appellant that on account of the relationship, the civil Court would not have jurisdiction is not sustainable. The first substantial question of law is answered against the appellant. The second and third substantial questions of law dos not arise, as neither this is a suit under Section 6 of the Specific Relief Act nor the government is necessary party as no relief is claimed against the government. The second appeal is accordingly dismissed. As rightly held by the trial Court the respondent/plaintiff is at liberty to approach the trial Court by an application under Order 20 Rule 12 CPC to determine mesne profits. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J February 15, 2011 DSK