THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1034 of 2009 Date:04th March, 2010 Between: Md.Murthuja …Appellant and M.A.Mannan …Respondent *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1034 of 2009 JUDGMENT: This Second Appeal has been directed against the judgment and decree dated 24.07.2009 passed in A.S.No.57 of 2008 on the file of I Additional District Judge, Nalgonda, whereby and where under the learned Additional District Judge dismissed the appeal filed against the judgment and decree dated 18.09.2008 passed in O.S.No.163 of 2004 on the file of the Senior Civil Judge, Miryalaguda. 2. Background facts in a nutshell leading to filing of this Second Appeal by the defendant in O.S.No.163 of 2004 on the file of the Senior Civil Judge, Miryalaguda, are: The respondent herein is the plaintiff in O.S.No.163 of 2004. He is the owner of the premises bearing Shop No.1, Near Sagar Road, K.R. Estate, Miryalguda. The appellant/defendant took the premises on lease from the respondent/plaintiff. The lease continued till 16.07.2001. According to the respondent/plaintiff, the appellant/defendant vacated the said premises by surrendering leasehold rights and handed over the key of the said shop and executed a document to that effect on 17.07.2001. Subsequently, the appellant/defendant occupied the shop and filed O.S.No.84 of 2001 on the file of the Senior Civil Judge at Miryalaguda, seeking injunction restraining the respondent/plaintiff herein and the Municipality, Miryalguda. The respondent/plaintiff issued a notice demanding the appellant/defendant to vacate the suit premises. There being no response from the appellant/defendant to the notice issued by the respondent/plaintiff, a suit being O.S. No.163 of 2004 came to be filed before the Senior Civil Judge at Miryalaguda, seeking the following reliefs: a) To grant a decree for a sum of Rs.1,50,000=00 towards the arrears of rent of suit schedule property from 05.10.2001 to 04.10.2004 due from the defendant to the plaintiff. b) To grant rental damages @ Rs.5,000=00 per month for the suit schedule property commencing from 05.10.2004 to till the restoration of possession of the suit schedule property to the plaintiff. c) To grant a decree of eviction of the defendant from the suit schedule property and to direct the defendant to restore back the possession and enjoyment of the suit schedule property to the plaintiff forthwith. d) Award costs of this suit. e) To grant any other relief or reliefs as the Hon’ble Court deems just and proper in the circumstances of the suit, in the interest of justice.” The appellant/defendant filed written statement resisting the claim of the respondent/plaintiff. The appellant/defendant, having admitted of his entry into the premises as a tenant, denied the title of the plaintiff. According to the appellant/defendant, the respondent/plaintiff is not the owner of the shop and therefore, the respondent/plaintiff is not entitled to claim the reliefs sought for in the suit. The trial Court settled the following issues for trial: 1) Whether the plaintiff is entitled for eviction of defendant from the schedule premises? 2) Whether the plaintiff is entitled for recovery of arrears of rents from 05.10.2001 to 04.10.2004? 3) Whether the plaintiff is entitled for damages at the rate of Rs.5,000/- per month from 05.10.2004? 4) Whether the defendant paid rents to the plaintiff as alleged by him? 5) Whether the plaintiff has no title over the schedule property as alleged by the defendant? 6) Whether the suit is not maintainable for non-joinder of necessary party? 7) Whether this Court has no jurisdiction to entertain the suit? 8) Whether there is no cause of action for filing suit? 9) To what relief?” On behalf of the respondent/plaintiff, he got himself examined as PW.1 and marked 6 documents as Exs.A1 to A6. On behalf of the appellant/defendant, he got himself examined as DW.1and marked 13 documents as Exs.B1 to B13. The trial Court, on considering the material brought on record and on hearing the counsel appearing for the parties, decreed the suit of the respondent/plaintiff granting eviction of the appellant/defendant from the suit schedule property. The appellant/defendant was also directed to pay a sum of Rs.50,000/- per annum from 05.10.2001 till the delivery of possession of the suit schedule property to the respondent/plaintiff. The appellant/defendant filed A.S.No.57 of 2008 on the file of I Additional District Judge, Nalgonda, assailing the judgment and decree, dated 18.09.2008 passed in O.S.No.163 of 2004. The lower appellate Court, on re- appraisal of the evidence brought on record and on hearing the counsel appearing for the parties, formulated five points for consideration and they are thus: 1) Whether the plaintiff is entitled for eviction of the suit premises? 2) Whether the suit is not maintainable for non-joinder of necessary party? 3) Whether the trial Court has no jurisdiction to entertain the suit? 4) Whether the plaintiff is entitled for recovery of arrears of rent and damages? 5) To what relief?” The lower appellate Court recorded the findings on all points in favour of the plaintiff and thereby proceeded to dismiss the appeal, by judgment dated 24.07.2009. Hence, this Second Appeal by the appellant/defendant. 3. Heard Sri N.Ashok Kumar, learned counsel representing Sri P.Prabhakar Reddy, learned counsel appearing for the appellant/defendant and Sri M.Rajamalla Reddy, learned counsel appearing for the respondent/plaintiff. 4. Learned counsel appearing for the appellant/defendant submits that the trial Court as well as the lower appellate Court failed to frame the issue with regard to the title of the respondent/plaintiff and thereby erred in decreeing the suit of the plaintiff. The learned counsel took me to the written statement of the appellant/defendant filed in the suit to convince that the appellant/defendant denied the title of the respondent/plaintiff and in which case, issue with regard to title of the plaintiff ought to have been framed in the suit. 5. Indisputably, the appellant/defendant was inducted in the premises by the respondent/plaintiff as a tenant. Under Section 116 of the Evidence Act, no tenant of immovable property shall during the continuance of the tenancy be permitted to deny the title of the person from whom he obtained lease. Indeed the lower appellate Court has considered this aspect in para.10 of the judgment impugned in the Second Appeal, which reads as hereunder: “ The contention of the defendant’s counsel is that the plaintiff is not the owner of the suit property and therefore, he has no right to recover the suit property from the plaintiff. According to him, he was misguided by the plaintiff. When once the defendant admits that he had taken the suit mulgi from the plaintiff on rent and also paid rents to the plaintiff, he cannot deny the relationship of the landlord and tenant. Section 116 of the Evidence act is very clear on this aspect. The plaintiff got issued a legal notice original of Ex.A-1 to the defendant terminating the tenancy by asking the defendant to vacate the premises by 1-3-2003, which is dated 18.01.2003 and it was received by the defendant on 21.01.2003, as seen from Ex.A3 acknowledgment. The defendant in his written statement in para.5 categorically stated that the plaintiff got issued a legal notice to the defendant. Thus, the tenancy was terminated. Therefore, the plaintiff is entitled to recover the possession of suit property. Accordingly, point No.1 is answered in favour of the plaintiff.” It is also not in dispute that the appellant/defendant earlier filed O.S.No.84 of 2001 claiming perpetual injunction against the respondent/plaintiff and the Municipality, Miryalaguda representing its Commissioner. In the said suit, he categorically admitted his status in the premises as a tenant. The suit filed by him came to be decreed directing the respondent/plaintiff not to interfere with his possession till he is legally evicted from the suit premises. The respondent/plaintiff issued notice and thereafter, instituted the suit seeking the reliefs as stated supra. The appellant/defendant having obtained the premises on lease from the respondent/plaintiff, is estopped from denying his title. The trial Court as well as the lower appellate Court considered the material brought on record in right perspective and rejected the contentions advanced by the appellant/defendant. I do not see any substantial questions of law, which are required to be adjudicated in this Second Appeal, warranting admission. 6. Accordingly, this Second Appeal is dismissed at the admission stage. No costs. 7. Learned counsel appearing for the appellant/defendant submits that the appellant/defendant has been carrying on business in the premises since 1990 and therefore, two years time is required to him to vacate the premises. 8. Learned counsel appearing for the respondent/plaintiff submits that a reasonable time may be granted to the appellant/defendant to vacate the premises. 9. Having considered the facts and circumstances, I deem it appropriate to grant three months time to vacate the premises subject to the following conditions: a) The appellant/defendant shall pay the arrears as ordered by the trial Court and as confirmed by the lower appellate Court; b) The appellant/defendant shall file an undertaking within two weeks before the trial Court that he would vacate the premises on or before expiry of three months from today. c) The amount already paid pursuant to the interim orders passed in this Second Appeal shall be given credit to the amount, which the appellant/defendant is required to be paid. d) As and when the amount is deposited, the respondent/plaintiff is permitted to withdraw the same. ______________________ B.SESHASAYANA REDDY, J. Date:04th March, 2010. cs HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1034 of 2009 Date:04th March, 2010