IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.551 of 2011 Between: Akula Yella Reddy ..... APPELLANT And E.Sreenivasulu .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.551 of 2011 JUDGMENT: This second appeal is directed against the judgment and decree dated 24.03.2011 passed by the Principal District Judge, Kurnool whereunder and whereby the decree and judgment in O.S.No.578 of 2006 dated 20.06.2009 passed by the Principal Junior Civil Judge, Dhoni is confirmed. 2. The parties are referred to as they are arrayed in the suit in the trial Court. 3. The brief facts that are necessary for disposal of the appeal are as follows: The plaintiff is the Receiver appointed by the Hon’ble Principal Senior Civil Judge, Kurnool in I.A.13/1997 in O.S.295/1991. The suit was filed by Y.Prabhavathamma & 4 others against B.Nagavenamma & 2 others for partition and separate possession of their shares, the Court ordered for the appointment of a Receiver to take possession of the plaint schedule properties and manage them. After the inspection of the plaint schedule property, the receiver sent notices to the persons in occupation of the property to pay the rents or deliver possession to him. But the persons in occupation of the property have failed to comply with the directions of the receiver. On the date of inspection the plaintiff found the defendant was in possession of the plaint schedule premises on a monthly rent of Rs.1400/-, but the defendant failed to pay the rent in spite of notice willfully and hence he is liable for eviction. 4. The defendant has filed written statement, denying the averments of the plaint and contended that the defendant and his brother have purchased an open site from Smt.B.Nagavenamma, W/o.late B.Vijaya Bhaskar Reddy on 18.12.1991 through a registered sale deed. Later, they constructed a shop on the site and enjoyed the same till 2002 February 4, after that, his brother Thimmaiah sold his half share in the shop on 04.02.2002 for a sum of Rs.65,000/- through a registered relinquishment deed, and hence the defendant is the absolute owner of the said shop. The defendant has purchased another site on 20.01.1998 from Palle Thimma Reddy through a registered sale, which is situated on eastern side of the defendant site, the said site was purchased by Palle Thimma Reddy from Nagavenamma, W/o late B.Vijaya Bhaskar Reddy. 5. Basing on the above pleadings the following issues are settled for trial: 1. Whether the plaintiff is entitled for delivery of vacant possession of the plaint schedule premises? 2. To what relief? 6. To substantiate the case of the plaintiff, he himself was examined as PW 1 and got marked Exs.A1 to A6. On behalf of the defendant, the defendant himself was examined as DW.1 and no documents were marked on his behalf. 7. The trial court after considering the entire evidence on record, came to the conclusion that the defendant is liable to be vacated from the suit schedule property and the plaintiff is entitled for delivery of possession of the same, and accordingly, decreed the suit. On appeal, the lower appellate Court has confirmed the same. Aggrieved thereupon, the present second appeal is filed. 8. The learned counsel for the appellant raised the following substantial questions of law to be considered in the present second appeal; a) Whether the suit for eviction is maintainable at the instance of a receiver appointed by the Court to manage properties without permission of the Court to file a suit, which appointed the said receiver? b) Whether a receiver appointed by the Court can proceed to manage the property the nature of which was admittedly changed and without seeking proper direction from the Court which appointed such a receiver? c) Whether a suit for eviction can be filed against an alienee of a joint family property, by one of the coparceners, without impleading him as a defendant in the suit which was filed for partition out of which the receiver was appointed? d) Whether a sale of a joint family property by the coparcener of the joint family property is not challenged and not set aside by the Court in a suit for partition can be set at naught in a collateral proceedings? e) Whether right of the alienee of a joint family property has lost right of pleadings equities in a suit for partition especially one of the joint family coparceners sold the property under registered sale deed? 9. On the other hand, the learned counsel for the respondent contended that in the partition suit, receiver was appointed and the receiver took possession of the suit schedule properties and some other land to manage the same, and therefore, he is entitled to protect the property by filing a suit for recovery of possession from the persons, who are unauthorisedly occupied the suit schedule land, and there being considering the evidence on record, the trial Court rightly decreed the suit. 10. The factual matrix is not in dispute. The plaintiff who is the receiver was appointed by the learned Principal Senior Civil Judge, Kurnool in I.A.13/1997 in O.S.295/1991, which was filed for partition and separate possession of their shares. Thereafter, the receiver sent notices to the persons who are in occupation of the properties and directed them to pay rents or deliver possession to him. The defendant who is in occupation of the plaint schedule property failed to comply with the directions of the receiver, and therefore, a legal notice was got issued, for which no reply was given, and hence the suit is filed. The defendant filed a written statement stating that he along with his brother purchased the site from one B.Nagavenamma on 18.12.1991 through a registered sale deed, and later constructed a shop in the site and enjoyed the same till February, 2002, and therefore, the defendant is the absolute owner of the shop. 11. The evidence of PW 1 would clearly goes to show that he was appointed as receiver under Ex.A6 orders in I.A.13/1997 in O.S.295/1991, whereunder he was ordered to take possession of the plaint schedule property and manage the same. When he inspected the plaint schedule property, he found the defendant was in possession of the property, then he directed the defendant to pay rents or vacate the premises, but he failed either to pay the rents or vacate the premises. Then he got issued Ex.A3 legal notice and the same was served on the defendant, but the defendant gave no reply. 12. As per the evidence available on record, the plaintiff is entitled to manage the properties with the permission of the Court. Ex.A1 is the memo filed seeking permission to file the suit. According to the defendant, he along with his brother purchased the open plot from one B.Nagavenamma by virtue of a registered sale deed dated 18.12.1991 and they constructed a shop in the said site, and therefore, he is in exclusive peaceful possession and enjoyment of the property in question. But the defendant has not filed any piece of paper to prove his contentions. Therefore, prima facie, as no evidence is adduced by the defendant, it can be said that he was in possession of the schedule property without there being any title. The receiver is entitled to receive the rents if the persons in possession are agreed to pay. As the defendant failed to pay the rents, the receiver rightly instituted the suit. Therefore, the trial Court, basing on both oral and documentary evidence adduced on behalf of plaintiff, rightly decreed the suit. The lower appellate Court also on re-appreciation of oral and documentary evidence available on record, confirmed the findings of the trial Court. 10. The appreciation of evidence by the Courts below is not shown either adverse or contrary to law. The substantial questions of law as formulated by the appellant are not the substantial questions of law, and they are only formal questions of fact. In view of the concurrent findings of both the Courts below, I do not see any question of law, much less substantial questions of law that arises for consideration in this second appeal. The appeal is devoid of any merits and is liable to be dismissed. 11. Accordingly, the Second Appeal is dismissed, however, leaving open the remedies available to the appellant under law. There shall be no order as to costs. _________________ K.C.BHANU,J Dated: 08.09.2011 Dsr