THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.824 of 2006 JUDGMENT: The respondents filed O.S.No.116 of 1998 in the Court of Junior Civil Judge, Tuni, against the appellants, for the relief of declaration of title and recovery of possession, in respect of the suit schedule property. It was pleaded that the property was purchased by their father in the year 1945 through a registered sale deed and was in his enjoyment till he died death in the year 1968. The property is said to have been given on lease to one Mr.Ayinala Veeraswamy, who, in turn, has erected a rice and flourmill. It was stated that after some years, Veera Swamy, sold the Machinery to Mohd. Sunnaulah and Mohd. Sharif and that the latter sold the mill equipment to the appellants permitting them to run it in the same premises by acknowledging that the respondents are the owners of the premises. A notice was got issued by the respondents seeking eviction of the appellants. Complaining that the appellants did not vacate the premises, in spite of notice, respondents filed the suit. The appellants filed a written statement, opposing the suit. According to them, the respondents have no title to the property and that even otherwise, they have perfected their title by adverse possession. Other contentions are also advanced. The trial Court decreed the suit through judgment, dated 31.03.2003. Thereupon, the appellants filed A.S.No.25 of 2004 in the Court of Senior Civil Judge, Pithapuram. The appeal was dismissed on 12.06.2006. Hence, this second appeal. Sri Ravi Cheemalapati, learned counsel for the appellants, submits that the respondents failed to prove the title to the property and the existence of relationship of landlord and tenant. He contends that even if the tenancy is to be presumed, an eviction petition under the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short ‘the Act’), and not a suit, ought to have been filed. He further submits that manufacturing process is taking place in the premises, and the notice issued under Section 106 of the Transfer of Property Act, 1882 (for short “the T.P.Act”), is defective. Sri N.Siva Reddy, learned counsel for the respondents, on the other hand, submits that his clients proved their title by filing Ex.A.1, sale deed, dated 19.11.1945, and other documents marked as Exs.A.1 to A.12. He contends that the plea of non-maintainability of the suit or the defect in the notice, was not raised either in the suit or in the appeal. The trial Court framed the following issues for its consideration, on the basis of the pleadings before it: i) “Whether the plaintiffs have got title to the plaint schedule property? ii) Whether the defendant is tenant under the plaintiff. If so, whether the defendant committed any default in payment of rent? iii) Whether the plaintiff is entitled to recover the amount as prayed for? iv) Whether the defendant is liable to be evicted from the plaint schedule property?” On behalf of the respondents, PWs.1 to 3 were examined and Exs.A.1 to A.12 were filed. On behalf of the appellants, DW.1 deposed and no documentary evidence was adduced. The suit was decreed, and in the appeal, the following points were framed: i) “Whether the plaintiffs are entitled for declaration, recovery of possession and mandatory injunction as prayed for? ii) Whether the defendants perfected their title to the schedule property by adverse possession? iii) Whether the defendants are liable to pay arrears of rent? iv) Whether the plaintiffs are entitled for future profits? v) Whether the plaintiffs are entitled for suit costs? vi) Whether the decree and judgment of the lower Court are liable to be set aside?” The appeal was ultimately dismissed. The respondents established the title by filing Ex.A.1, the sale deed through which, their father purchased the property. Their claim to the property could have been defeated by the appellants, if only any transfer from the original owner, or other acquisition of title was proved. Except that the 4th appellant herein deposed as a witness, no other evidence was adduced. The inescapable conclusion is that the respondents have proved the title to the property. The stand of the appellants was inconsistent. At one stage, they pleaded that the property was purchased by them. However, the pleadings are only to the effect that it is only the machinery, that was purchased by them. No document in relation to any purchase was filed by the appellants. In fact, the vendor of machinery never canvassed title, vis-à-vis the land. For the first time before this Court, the plea of non- maintainability of the suit is raised stating that the provisions of the Act apply, since the rent is less than Rs.1,000/-. That is a pure question of fact. There was no occasion for the respondents to deal with the same, since it was not raised in the suit. Further, the appellants denied the title of the respondents and a suit for declaration had to be filed. The relief of eviction was claimed as ancillary to the principal relief of declaration of title. Therefore, it cannot be said that the suit was not maintainable. The plea, as regards the so-called defect in the notice issued under Section 106 of the T.P.Act, also was not raised in the written statement. Further, in view of the amendment to Section 106 of the T.P. Act in the recent past, the defect, if any, becomes inconsequential. Viewed from any angle, this Court does not find it proper to interfere with the concurrent findings recorded by the trial Court and the lower Appellate Court. The second appeal is accordingly dismissed. The appellants are granted time till the end of May, 2012 to put the respondents in vacant possession, subject to payment of rents. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:23.12.2011 GJ