IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.108 of 2010 Between: Ravipati Krishna Murthy. … Petitioner And Kothapalli Pedakapu @ Subbarayudu … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No. 108 OF 2010 ORDER:- The unsuccessful plaintiff in the courts below filed this second appeal against the decree and judgment of the Senior Civil Judge, Ramachandrapuram passed in A.S.No.6 of 2008, dated 07.09.2009 whereby the appeal filed by the appellant has been dismissed confirming the decree and judgment of the Junior Civil Judge, Alamuru, dated 21.01.2008 dismissing O.S.No.55 of 2000 filed seeking a decree for a sum of Rs.27,120/- and subsequent interest upon the leased amount of Rs.24,000/- from the defendant. For the sake of convenience, the parties herein are referred to as they were arrayed before the trial Court. The simple case of the plaintiff is that he is the absolute owner of Ac.1-66½ cents in S.No.111 of Makidi village, which fell to his share in the partition among his three brothers, after the death of his father. Since the date of partition, plaintiff and his two brothers are enjoying their respective shares. The defendant was inducted into possession in the last week of May, 1994 as a tenant subject to payment of Rs.8,000/- payable by January for the succeeding year. As per the terms of the lease, the plaintiff has to pay land revenue to the Government. After that the defendant failed to pay the rentals at Rs.8,000/- for the years 1996-97, 1997-98, 1998-99 and 1999-2000, payable by 15th of January 1997, 1998, 1999 and 2000 respectively, and thereby, the plaintiff got issued a notice dated 29.09.1999 demanding the rentals for the years 1996-97, 1997-98, 1998-99 and interest thereon. The defendant sent a reply-Ex.A5 on 22.11.1999 with a false and untenable ground and hence the suit. The defendant filed written statement denying the averments contending that the plaintiff is his close relative and there is no landlord and tenant relationship between them. He purchased an extent of Ac.5-00 cents of land in Makidi village including the plaint schedule property under an agreement of sale dated 27.05.1976 from the plaintiff and his two brothers and mother and since then he has been in possession of the property apart from other extent as owner of the same, but not as a tenant. Hence the suit. Basing on the above pleadings, the following issues were settled by the trial court: 1. Whether the plaintiff is entitled for the recovery of rental amount from the defendant as prayed for? 2. To what relief? To prove the case of the plaintiff, plaintiff himself examined as P.W.1 and one more witness on his behalf as P.W.2 and Exs.A1 to A3 were marked. On behalf of the defendant, he himself examined as D.W.1 and one more witness on his behalf as D.W.2, but no documents were marked. The trial court after taking into consideration the oral and documentary evidence, held that the plaintiff did not file any proof that the defendant paid the rentals of Rs.8,000/- each for the period from 1994-95 and 1995-96 as alleged by him. The plaintiff pleaded that the defendant was in possession of the property from 1994, but Ex.A1 pattadar passbook was issued in 1995 that the land was in personal cultivation of the plaintiff, which is contrary to his case. The plaintiff who was examined as P.W.1, deposed that he does not know when his father died, but after three years of the death of his father himself and his brothers partitioned the properties and that he cannot say the year of partition and that there is no document to show that the property fell to his share was partitioned along with his brothers and sisters and he also stated that he leased out the land for ten years after the partition. But the plaint averments discloses that the partition was taken place in the recent past. The plaintiff has also not filed the agreement of sale executed by the plaintiff, his brothers and mother in his favour and he is in possession of the schedule property along with other properties. Since the plaintiff failed to establish that the property was leased out to the defendant for a rental of Rs.8,000/-, the trial court dismissed the suit. On appeal being filed, the lower appellate court on re-appreciation of the evidence has not accepted the evidence of the plaintiff. In the cross-examination the plaintiff stated that after three years of the death of his father, the partition took place and that he leased out the plaint schedule property to the defendant after about ten years of the partition, which is contrary to the evidence given by him in the chief examination, wherein he stated that in the recent past only the partition took place. Prior to that statement in the cross-examination he stated that he is now raising paddy and growing coconut trees in the disputed land and stated that even after he filing the suit also the defendant is continuing to commit default but he did not file another suit for recovery of rents from 1999 onwards. The documentary evidence Exs.A1 pattadar passbook and Ex.A2-title deeds discloses that the plaintiff is the owner of plaint schedule land, but in Ex.A1 the name of pattadar is shown in column No.7 stating that the owner is cultivating for himself. Therefore, the claim of the plaintiff that it was leased out to the defendant is not supported by Ex.A1. The plaintiff’s case is that he leased out the property to the defendant and the defendant who is cultivating the land as a tenant has to pay the cist apart from the lease amount, but the land revenue receipt under Ex.A7 shows that the plaintiff himself paid the cist. Therefore, when D.W.1 reiterated that he is never the tenant of the plaintiff, but he is in possession of the schedule property as purchaser under an agreement of sale and that he filed a suit for specific performance also, he cannot be asked to produce negative evidence that he is not the tenant. As the plaintiff failed to establish the tenancy between himself and the defendant with the above evidence, the appellate court dismissed the appeal. Concurrent findings of fact recorded by the courts below on appreciation of evidence do not give raise to any substantial question of law to be decided in this second appeal. Accordingly, the second appeal is dismissed. The appellant is at liberty to avail the remedies available to him for declaration of title and recovery of possession, if so advised, in accordance with law. No order as to costs. __________________ A.GOPAL REDDY, J 19th March 2010 lmv