THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.1444 of 2010 Dated:- 30th April, 2011 Between:- Smt.Y.Nagamma @ Nagalakshmi and another …Appellants AND N.Somaiah …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.1444 of 2010 JUDGMENT:- This appeal is directed against the judgment and decree dated 16.08.2010 passed in A.S.No.281 of 2007 by the I Additional District & Sessions Judge, R.R.District at L.B.Nagar, Hyderabad (‘lower appellate authority’, for brevity), whereby and whereunder, the judgment and decree dated 27.06.2007 passed in O.S.No.1148 of 2004 by the I Additional Senior Civil Judge, R.R.District at L.B.Nagar, Hyderabad (‘the trial Court’, for brevity) was set aside. 2. Both the appellants herein are defendants 1 and 2 and the sole respondent herein is the plaintiff in the Original Suit. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the trial Court. 3. The brief facts of the case are as follows:- The plaintiff is the owner of the suit schedule property having purchased the same from the A.P.Housing Board under a registered sale deed vide document No.2633 of 2006 dated 06.07.2000 and that the first defendant is the tenant of the suit schedule property. Initially, the plaintiff has shown the name of the first defendant as Smt.Y.Nagamma, but after filing of the written statement, he got the name corrected as G.Narsamma Alias Nagalakshmi. According to the plaintiff, the suit schedule property was let out to the first defendant on a monthly rent of Rs.750/- and the first defendant stopped paying rents from the month of June, 2002 and when he demanded the first defendant to vacate the suit schedule property, she filed a complaint to the police, Kukatpally with false and baseless allegations, which was registered as Crime No.595 of 2002. Alleging that the first defendant has denied his title and that she was inducted into possession of the suit schedule property at the request of the second defendant, he filed the Original Suit for recovery of possession of the suit schedule property. The plaintiff has also specifically pleaded that the second defendant has filed a suit in O.S.No.872 of 2002 on the file of the Junior Civil Judge, R.R.District (W/S) at L.B.Nagar for declaration of his title to the suit schedule property and for injunction and that he is contesting the said suit. 4. The second defendant filed written statement which was adopted by the first defendant. Their specific case is that the suit is not maintainable in the absence of issuance of legal notice which is mandatory under Section 106 of the Transfer of Property Act, 1882 (“T.P.Act”, for brevity). Their further case is that the first defendant offered to sell the suit schedule property to the second defendant for a sale consideration of Rs.90,000/- and executed an agreement of sale dated 08.12.1989 in Ex.B.2 before a Notary and Advocate by name Sri P.Hanumantha Rao Naidu who entered the same in his records vide entry No.4910/89, dated 08.12.1989 and since then the second defendant has been in peaceful possession of the suit schedule property. It is also their case that as per the agreement, the second defendant has paid Rs.69,085/- towards instalments to the A.P.Housing Board as the first defendant has no capacity to pay the same and that the plaintiff has no title to the suit schedule property and the second defendant is in peaceful possession of the same. 5. Basing on the above rival contentions, the trial Court framed the following issues for consideration. 1. Whether the plaintiff is the owner of the suit schedule property? 2. Whether the plaintiff is entitled for possession of the suit schedule property? 3. To what relief? 6. On behalf of the plaintiff, the plaintiff himself was examined as P.W.1 and Exs.A.1 to A.10 were marked. On behalf of the defendants, the first and second defendants were examined as D.W.2 and D.W.1 respectively besides examining D.Ws.3 to 5 and Exs.B.1 to B.19 were marked. 7. On issue No.1, the trial Court, basing on Ex.A.1 – C.C. of the registered sale deed dated 06.07.2000 executed by the A.P.Housing Board in favour of the plaintiff, held that the plaintiff is the owner of the suit schedule property. The trial Court also observed that the second defendant filed O.S.No.872 of 2002 on the file of the Junior Civil Judge, R.R.District (W/S) at L.B.Nagar, Hyderabad, against the plaintiff seeking specific performance of the contract and that it cannot be said that the title has been conveyed in favour of the second defendant, even if the case of the second defendant is accepted as true. 8. On issue No.2, the trial Court came to the conclusion that though the plaintiff’s case is that the first defendant, who is the tenant of the suit schedule property, stopped paying the rents from the year 2002 and even made construction of a compound wall in the suit schedule property, the plaintiff did not take any steps and when it is the case of the plaintiff that the first defendant is his tenant, the plaintiff ought to have issued a notice to the first defendant, as required under Section 106 of the T.P.Act. The trial Court, taking into consideration the documents filed by the defendants which go to show that the second defendant has paid the instalments to the A.P.Housing Board, held that since the plaintiff himself admitted the execution of Ex.B.2 – Agreement of Sale dated 08.12.1989 in favour of the second defendant and the evidence on record falsifies the plea of the plaintiff that he himself paid the instalments to the A.P.Housing Board. The trial Court, finally holding that no notice has been issued by the plaintiff to the first defendant, as required under Section 106 of the T.P.Act, dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal before the lower appellate authority. 9. The lower appellate authority, by its impugned judgment, held that the plaintiff paid Rs.25,000/- to the defendant on 01.02.2000 and Rs.7,016/- on 08.02.2000 towards last and final instalment and thus paid the total sale consideration and that the admission of D.W.2 (first defendant) that the plaintiff came to the suit schedule property on 01.09.2002 and asked the first defendant to vacate the house claiming that he is the owner of the suit schedule property proves that the first defendant is the tenant of the plaintiff and that since D.W.1 (second defendant) stated that he is residing at Sanjeevareddy Nagar in the house occupied by his father, it proves that he is not in possession of the suit schedule property and that the second defendant kept quiet without demanding execution of registered sale deed in place of Ex.B.2 and that the evidence shows that the possession of the suit schedule property was not delivered to the second defendant in pursuance of the agreement of sale in Ex.B.2 and that the suit filed by the plaintiff is maintainable and that no notice is required to be issued under Section 106 of the T.P.Act since the defendant has committed default in payment of rents and that the status of the first defendant of the suit schedule property is tenant at sufferance and that the defendant has not taken any specific plea that the suit is bad for want of notice under Section 106 of the T.P.Act and now they cannot say that the suit is bad for non-issuance of notice under Section 106 of the T.P.Act. Holding so, the lower appellate authority allowed the appeal and reversed the findings of the trial Court. 10. Sri P.Indra Prakash, Learned counsel for the appellants/defendants, submitted that admittedly, the plaintiff has not given the correct name of the first defendant in the cause title of the Original Suit and thus, it shows that the first defendant is the stranger to the plaintiff and subsequently, the plaintiff got amended the cause title of the Original Suit after the defendants’ filed their written statement. It is further submitted that the plaintiff’s case is that he had let out the suit schedule property to the first defendant and, therefore, notice under Section 106 of the T.P.Act is mandatory and that without issuing any notice under Section 106 of the T.P.Act, the suit itself is not maintainable. His further submission is that in fact, the suit schedule property is situated in Kukatpally area, i.e., in the Hyderabad city and that all the buildings which are exceeding the rent of Rs.1,000/- are exempted from the provisions of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 (‘Rent Control Act’, for brevity), but since the rent of the suit schedule property is less than Rs,1,000/-, the plaintiff ought to have initiated proceedings under the provisions of the said Act and in that view also, the suit filed by the plaintiff is not maintainable. It is further submitted that the second defendant filed a suit for specific performance and injunction in the year 2002 and during the pendency of the said suit, i.e., two years after filing of the said suit, now the plaintiff has filed the present suit. It is also his submission that the plaintiff ought to have valued the suit taking one year rent of the suit schedule property under Section 40 of the A.P. Court-Fees and Suits Valuation Act, 1956 (‘Court Fees Act’, for brevity) and that Section 29 of the Court Fees Act is not applicable to the facts of the present case. It is also submitted that the plaintiff admitted his signatures on the agreement of sale in Ex.B.2 executed in favour of the second defendant and when he has admitted his signatures on the agreement of sale, it is for the plaintiff to explain under what circumstances he has signed on the agreement of sale. It is further submitted that the plaintiff is a retired employee and he was also working as LIC agent and his version that he signed on the blank papers cannot be accepted. His main submission is that the lower appellate Court, without any valid grounds and without considering the pleadings and weighing the evidence on record, came to wrong conclusions and since these conclusions are based on no evidence and even against the pleadings, they are perverse and, therefore, the impugned judgment is liable to be set aside. 11. Learned counsel for the appellants/defendants had further submitted that admittedly, the first defendant has adopted the written statement filed by the second defendant and that the lower appellate authority was not justified in coming to the conclusion that the first defendant failed to file the written statement and thus, this finding of the lower appellate authority is also factually incorrect and thus perverse. It is also his submission that the case of the plaintiff is that he has signed on the blank papers having taken loan, but as seen from the records, Ex.B.2 is on stamp paper and not on the blank paper and that when the plaintiff argued that he has taken loan, he had not whispered anything as to whether the said loan is discharged or not and thus, it is clear that the plaintiff has not come to the Court with clean hands. It is also submitted that the lower appellate authority failed to consider the abundant documentary evidence adduced by the defendants which go to show that it is the second defendant who paid the instalments to the A.P.Housing Board and even the last instalment was also paid by the second defendant and that the execution of the registered sale deed in Ex.A.1 in favour of the plaintiff was only nominal one and that when the entire sale consideration has been paid by the second defendant to the plaintiff as per the agreement of sale in Ex.B.2 and as per the terms of the agreement of sale when he has paid all the instalments to the A.P.Housing Board, the plaintiff cannot claim any title to the suit schedule property. It is his further submission that admittedly, the first defendant has constructed a compound wall on the suit schedule property and by any stretch of imagination, it cannot be said that a tenant would be dare enough to construct a compound wall and the landlord would allow the tenant to construct a compound wall that too when the tenant became a defaulter in payment of rents. It is also argued that the first defendant lodged a police complaint against the plaintiff when he tried to evict the defendants and that no tenant would give a police complaint against the real owner and that all these circumstances go to show that the plaintiff’s claim that he is the owner of the suit schedule property is not bonafide. Learned counsel has taken me through Ex.B.11 – receipt of the Housing Board dated 01.02.2000 filed by the defendants showing the payment of Rs.25,000/- and other receipts of the A.P.Housing Board in Exs.B.7, B.9 and B.10 and submits that the lower appellate court wrongly held that the plaintiff has paid the said instalments to the A.P.Housing Board. It is also his submission that when the plaintiff’s case is that the first defendant is the tenant, but admittedly, the plaintiff is silent as to in which year the tenancy commenced. He further submits that when it is the case of the plaintiff that the first defendant failed to pay the rents since the year 2002, the plaintiff would not have kept quiet and admittedly, the plaintiff had not even issued any legal notice demanding the arrears of the rents from the first defendant. It is also his submission that admittedly, the second defendant filed the suit in the year 2002 and two years after filing of the said suit, the plaintiff filed the present suit in the year 2004. Learned counsel had relied upon the judgment of Division Bench of this Court in the case between M.Maremma and others Vs. D.Krishnavenamma and others[1] in support of his contention that the plaintiff ought to have approached the Rent Controller for eviction of the first defendant. 12. Per contra, Sri Madhava Rao, learned counsel for the respondent/plaintiff submitted that the plaintiff has been allotted the suit schedule property by the A.P.Housing Board and when the first defendant has denied that she is the tenant of the plaintiff and when the jural relationship has been denied, there is no need to issue notice as required under Section 106 of the T.P.Act and similarly, the provisions of the Rent Control Act are also not applicable when the jural responsibility has been denied. It is also his submission that the first defendant is the mother-in-law of the second defendant and admittedly, the first defendant has not filed the written statement and there is nothing wrong to say that the first defendant has not filed the written statement by the lower appellate authority. His main submission is that when the trial Court has categorically held that the plaintiff is the owner of the suit schedule property and when that finding is not challenged by the defendants by filing a separate appeal, such finding becomes final and the same cannot be disturbed. It is also his submission that when the plaintiff has proved his title, the suit has to be decreed. It is also his submission that the plaintiff has paid the Court fee as required under Section 29 of the Court Fees Act and in view of the reliefs claimed by the plaintiff, the same is appropriate. His main submission is that the plaintiff did not claim any relief under Section 40 of the Courts Fees Act and as such there is no need to pay the Court Fee under Section 40 of the Court Fees Act. It is his further submission that when the title of the plaintiff is not in dispute and when the second defendant himself is claiming the title from the plaintiff by filing a suit for specific performance of contract, that itself proves the plaintiff’s title. It is also submitted that admittedly, the agreement of sale was executed in the year 1989 and by that date the plaintiff himself had no title to the property and the title passed to the plaintiff when the A.P.Housing Board executed a registered sale deed in favour of the plaintiff. In support of his contentions, learned counsel has relied upon the judgments in the case between Prapul Chandra Mukpalkar Vs. P.Ramachandra Reddy[2] and Bandi Thavitinaidu and others Vs. Jeeru Thatha[3]. 13. Ground No.20 of the Memorandum of Grounds of Appeal was taken as substantial question of law at the time of admitting of this Second Appeal, which reads as follows:- 20. The following are the points of law which arise for the consideration of the Court in this Second Appeal as substantial question of Law and Facts. a) Whether there is any exception to the mandatory notice required under Section 106 of the Transfer of Property Act? b) Whether on the facts and circumstances of the case, the requirement of Section 106 of the Transfer of Property Act can be ignored or waived? c) Whether the suit as framed is a suit between the landlord and the tenant or a suit for possession of immovable property? d) Whether there is a misjoinder of causes of action and misjoinder of the parties in the suit and therefore, the suit is on that ground is liable to be dismissed? e) Whether the suit as framed is maintainable? 14. It is settled law that the plaintiff has to stand or fall on his pleadings and he cannot depend upon the weakness in the case of the defendants. The plaintiff’s specific case is that he is the owner of the suit schedule property and that the first defendant is his tenant. The plaintiff had categorically averred in his plaint that he let out the suit schedule property to the first defendant on a monthly rent of Rs.750/- per month and that the first defendant stopped paying rents from the month of June 2002. Having taken a specific plea that the first defendant is the tenant of the suit schedule property irrespective of the plea taken by the defendants, the plaintiff cannot change his own stand. Therefore, it appears that issuance of notice under Section 106 of the T.P.Act is necessary and admittedly, no such notice has been issued. Therefore, prima facie, it appears that the plaintiff’s suit is not maintainable. 15. Admittedly, the plaintiff did not specify when the first defendant was inducted as tenant in the suit schedule property. Admittedly, the second defendant filed a suit in the year 2002 and the present suit is filed in the year 2004. It is the case of the plaintiff that the first defendant stopped payment of the rents from the year 2002. Admittedly, the plaintiff did not issue a legal notice demanding the first defendant to pay the arrears of rent to vacate the premises. Moreover, the evidence on record reveals that when the plaintiff tried to evict the first defendant, the first defendant lodged a police complaint and even the averments of the plaint go to show that the first defendant has denied the title of the plaintiff in the year 2002. That being the case, it appears to be quite unnatural to say that the plaintiff kept quiet without initiating any proceedings from the year 2002 and particularly, when the first defendant constructed a compound wall in the suit house in the year 2002 itself. 16. It has to be seen that when the first defendant filed a memo adopting the written statement of the second defendant, the observations of the lower appellate authority that the first defendant has not filed the written statement is factually incorrect and, therefore, on this ground alone, the impugned judgment can be set aside. The lower appellate authority held that as the first defendant has been residing in Sanjeevareddy Nagar area, it appears that he is not in possession of the suit schedule property. A person may have several properties and several residential houses in the city. Merely because a person is not residing in a particular house, that does not mean that such person is not in possession and he has no title to that house. 17. The lower appellate authority observed that the defendants never raised any plea of non- issuance of notice under Section 106 of the T.P.Act in their written statement and that the suit is bad for want of such notice under Section 106 of the Transfer of Property Act and that moreover, in this case, the first defendant has not filed any written statement. It appears that in Para No.7 of the written statement, the second defendant has taken a specific plea that the suit is not maintainable without issuing legal notice and that the legal notice is mandatory as per the provisions of the C.P.C. Thus, the lower appellate authority, without looking into the record and averments made in the written statement, came to incorrect conclusion that the defendants never raised a plea as to non-issuance of notice under Section 106 of the T.P.Act. Of course, the defendants did not state that issuance of notice under Section 106 of the T.P.Act is mandatory, but however, they stated that the suit was filed without issuance of legal notice. It is settled law that the parties need not plead law in their pleadings. 18. The lower appellate authority, in the impugned judgment, observed that the plaintiffs filed the suit in the year 2004 and that means for nearly two years, the second defendant has kept quiet without demanding execution of the registered sale deed in the place of Ex.B.2. The lower appellate authority has not considered the fact that the second defendant has already filed the suit in O.S.No.872 of 2002 on the file of the Junior Civil Judge, Ranga Reddy District at L.B.Nagar (W/S), Hyderabad, for declaration of ownership and injunction against the plaintiff. Thus, several findings of the lower appellate authority are against the record and are perverse. 19. As far as the title dispute between the parties is concerned, admittedly, no appeal has been filed by the defendants challenging the findings of the trial Court and there is no need to discuss about the same. Moreover, admittedly, the suit filed by the second defendant is still pending. What is the impact of the admission of the plaintiff that he signed in Ex.B.2 – Agreement of sale dated 08.12.1989 and what is the impact of the admission of the plaintiff that the first defendant has been in possession of the suit schedule property and also what is the impact of the proof showing the payment of instalments by the second defendant to the A.P.Housing Board need not be discussed in this appeal. It is clear that the lower appellate authority has taken several irrelevant facts into consideration and reached to wrong conclusions. 20. Learned counsel for the respondent/plaintiff had relied upon Prapul Chandra Mukpalkar’s case (2 supra). In that case, the main dispute was with regard to the transfer of ownership of the member of a cooperative society on his death and allotment of the plot by the Society to another member. In the circumstances of the case, it was held that once the society has executed a sale deed, the Society again cannot execute another sale deed in favour of another person. It was further held that unless the first sale is cancelled in accordance with law by society as violative of bye-laws of the society, the first allottee will get valid title to plot and will have priority over subsequent allottees. The facts of that case are entirely different and not applicable to the facts of the case on hand. Moreover, in that case, it was held that the High Court in Second Appeal can always consider the evidence on record where material findings are not based on record and perverse and that ‘perverse’ means giving a finding without any basis or on misreading of evidence or pleading and which cannot sustain and