IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.998 of 2011 Date: 26.08.2011 Between: Khaja Kaleem Uddin .....Appellant AND Naseeruddin ....Respondent THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.998 of 2011 JUDGMENT: 1. This appeal is directed against the judgment and decree dated 30.06.2011, passed by the Chief Judge, City Civil Court, Hyderabad, in confirming the judgment and decree in O.S.No.1439 of 2009 dated 06.08.2010, passed by the Junior Civil Judge, City Civil Court, Hyderabad, wherein the suit filed for mandatory injunction and eviction was decreed. 2. The parties are referred to as they are arrayed in the suit in the trial court. 3. The brief facts of the appeal that are necessary for disposal of the present appeal are as follows: In the year 1968, the deceased (father of the defendant) has obtained a lease from the plaintiff to lease out a small open land admeasuring 3 x 4 feet, which is adjacent to the main gate of the plaintiff’s property bearing house numbers 4-1-535 and 536 for the purpose of fixing a small Wooden Pan Dabba and carry on business, on payment of monthly rent of Rs.20/- exclusive of electricity charges. The said tenancy is an oral tenancy. In the year 1984, the father of the defendant died. Therefore, the pan Dabba was removed. Subsequently, in the year 1985, the defendant requested the plaintiff and his brother to lease out the same open land for erecting a new Pan Dabba for doing business on payment of monthly rent of Rs.60/- exclusive of electricity charges. Accordingly, the open land was leased out by the plaintiff and his elder brother to the defendant to fix a new Pan Dabba. A rental agreement dated 9.8.1985 for eleven months was executed. Later, the plaintiff and his deceased-brother have got erected the Pan Dabba. However, the Pan Dabba was assigned a number 4-1-535/1. It is clearly mentioned in the rental agreement that open land only was let out. The defendant deposited Rs.120/- i.e., two months rent as advance and security deposit and the monthly rent is payable on or before the 10th of each calendar month and the electricity charges are payable separately by the defendant. The defendant filed O.S.No.16518 of 2003 on the file of III Junior Civil Judge, City Civil Court, Hyderabad, for an injunction on false grounds against the plaintiff and his deceased brother and afterwards the defendant had not pressed the said suit. Without the permission of the plaintiff and his brother, the defendant had removed the Wooden Pan Dabba and fixed a tin shed dabba and started doing gas stove repair and air cooler business under the name and style ‘Bombay Gas Stove Sales and Service’. After the expiry of the original agreed lease period, the defendant continued as month to month tenant and the monthly rent was also increased from time to time and the present monthly rent is Rs.450/- exclusive of electricity charges. The defendant committed default in paying the rents from July, 2004 onwards and also changed the business as stated above by removing originally constructed Pan Dabba and making a new tin shed dabba construction without the consent of the plaintiff and his brother. Therefore, R.C.No.257 of 2004 and R.C.No.258 of 2003 were filed by the plaintiff for eviction and for fixing of fair rent @ Rs.3,000/- per month on the ground that the defendant/tenant committed default in payment of rents. Both the rent control cases were allowed and eviction was ordered and fair rent was fixed at Rs.1,000/- per month. The defendant preferred Rent Control Appeals Nos.113 of 2007 and 114 of 2007 on the file of Chief Judge, City Small Causes Court, Hyderabad and contended that what was let out was the open land, and hence, the Rent Control court is not having jurisdiction. While the said appeals were pending, the defendant has paid the defaulted amount of Rs.15,750/- through cheque bearing number 341696, drawn on Indian Overseas Bank, which was the arrears of rent due for thirty five months from July, 2004 to May, 2007. While, so the brother of the plaintiff died unmarried on 17.2.2007. As such, the plaintiff is now the sole owner of the property described in the schedule property. The defendant stopped paying the rents from August, 2008 onwards. The Rent Control Appeals filed by the defendants were allowed by the learned Chief Judge, City Small Causes Court, Hyderabad solely on the ground that the property let out was an open land and therefore, the Rent Control Court has no jurisdiction to entertain the eviction petition and the fair rent petition. In the circumstances, the plaintiff has got issued a notice dated 28.1.2009 under Section 106 of the Transfer of Property Act and terminated the tenancy of the defendant in respect of the suit property by 5.3.2009 and requested the defendant to hand over the vacant possession of the suit property. The defendant got issued a reply dated 3.2.2009 with false allegations and did not remove the tin shed dabba from the plaint schedule property and failed to deliver vacant possession of the same to the plaintiff. Hence, the plaintiff has filed the suit for eviction of the defendant from the plaint schedule property with a direction to remove the tin shed dabba and hand over vacant peaceful physical possession of the plaint schedule land and for arrears of rent, future mesne profits and damages for wrongful use and occupation. 4. The defendant filed written statement denying the averments made in the plaint and stated that he has never acted against the rental agreement between him and the plaintiff. No willful defaults were committed in payment of rents. The defendant is prompt in paying the rents. The Rent Control Appeal filed by the defendant against the orders of the Rent Control Court were allowed by the court below. The notice issued by the plaintiff is bad in law as it is illegal and it was issued with a malafide intention to harass the defendant and to deprive him of his only sources of income. The suit is filed only due to personal vendetta. 5. Basing on the pleadings the following issues were framed for trial: 1. Whether the plaintiff is entitled to the grant of mandatory injunction for removal of tin shed from the suit schedule property, as prayed for? 2. Whether the plaintiff is entitled to recovery of possession of the suit schedule property, as prayed for? 3. Whether the plaintiff is entitled to recovery of arrears of rents of Rs.3,225/- as prayed for? 4. Whether the plaintiff is entitled to recovery of future mesne profits, as prayed for? 5. Whether the plaintiff is entitled to the grant of interest on the future mesne profits, as prayed for? 6. What relief, if any, is the plaintiff entitled to, in the facts and circumstances of the case? 6. To substantiate the case of the plaintiff, he himself was examined as P.W.1 and one Fatimatajuddin was examined as P.W.2. The sole defendant was examined as D.W.1. Exs.A.1 to A.11 and Exs.B.1 and B.2 were marked on behalf of the respective parties. 7. The trial court after considering the entire evidence on record, decreed the suit. On appeal, the judgment and decree of trial court were confirmed. Challenging the same, the present appeal is filed. 8. Now the point for determination is whether there is any substantial question of law involved so as to admit the appeal? 9. The contention of the learned counsel for the appellant is that when one of the landlords died, whether the surviving landlord alone can proceed with the eviction suit when the tenancy agreement was executed in favour of the deceased landlord and surviving landlord particularly when all the legal heirs of the deceased landlord who were not brought on record, that there is no evidence of partition among the landlords whereunder property in dispute fell to the share of plaintiff and the plaintiff failed to show his sole ownership in respect of the plaint schedule property and hence he prays to allow the appeal. 10. On the other hand, the learned counsel for the respondent contended that in the plaint, it is specifically pleaded that one of the co-owner died issueless and therefore, the plaintiff alone is entitled to succeed to the property and that the said allegations have not been challenged in the written statement and that contention cannot be raised in the Second Appeal and there is no substantial question of law involved so as to admit the appeal. 11. There can not be any dispute that in view of the amendment to C.P.C in the year 2002, the admission of second appeal is not automatic or routine. The appellant must show the substantial question of law involved in the appeal. If the findings are not based on any evidence or perverse findings were recorded by both the courts below, or inadmissible evidence was taken into consideration or admissible evidence was overlooked are some of the instances where the second appeal can be admitted. The tenancy is not disputed. Ex.A.2 which is the certified copy of the rental deed is not disputed. The appellant is the tenant and he is admittedly paying the rent. Ex.A.5 is the certified copy of legal notice got issued by the landlord (plaintiff) to the defendant (tenant) to vacate the premises by duly giving one month’s time. Ex.A.5 is not in dispute. Once Ex.A.5 is issued in accordance with Section 106 of the Transfer of Property Act, 1882, the tenant has no other go except to vacate the premises in question. For the first time, the learned counsel for the appellant stated that as the lease deed was executed by the two brothers and one brother died, the legal heirs of the other were not brought on record, the suit itself is not maintainable. The contention of learned counsel for appellant that legal representatives of one co-owner are not impleaded is not a ground to dismissal of suit. It is well settled that one of the co-owner can file a suit for eviction of a tenant in the property general owned by the co-owners. Once co-owner filing a suit for eviction against tenant does so on his own behalf in his own right and as an agent of the other co-owner. On this aspect, it is pertinent to refer to a decision in India Umbrella Manufacturing Company Vs. Bhagabander Agarwal[1] wherein it is held: “It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners (See: Sri Ram Pasricha v. Jagannath and others, 1976(4) SCC 184; Dhannalal v. Kalawatibai and others, 2002(6) SCC 16 (Para 25): 2002(1) RCR (Rent) 126(SC). This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement.” 12. But, a specific plea has been taken by the plaintiff in the plaint to that effect that the other brother died unmarried and therefore, the plaintiff alone is the sole surviving legal heir and therefore he is competent to file the suit. The evidence let in by P.W.1 would clearly go to show that his brother died issueless and therefore, he is succeeding to the property. That aspect of the case has not been denied or disputed by the defendant. Even otherwise, this is a suit for eviction of the tenant from the schedule premises. Even assuming for a moment that there are other legal heirs, one of the co-owner can file a suit for eviction of the tenant from the suit schedule property. That may be intersee dispute between the plaintiff and other legal heirs and that is not a ground to dismiss the suit. Therefore, practically the evidence of P.W.1 and the recitals in Ex.A.2 and Ex.A.5 remained unchallenged. Therefore, the trial court rightly decreed the suit and the same was confirmed in the appeal. None of the findings is shown to be perverse or contrary to law. The findings are based on proper appreciation of the evidence on record. Hence, there are no grounds to admit the appeal. 13. But however, the appellant is in possession and enjoyment of the property as a tenant from 1985 onwards and doing business in the premises in question. According to the learned counsel for the appellant doing of business in the schedule premises is the only source of income to appellant and therefore sincerely he has to make arrangement for securing alternative accommodation for the purpose of continuing his business. Therefore, taking into consideration of the facts and circumstances of the case, some reasonable time can be granted to the appellant so as to enable him to vacate the premises in question. Hence, eight months time is granted to the appellant to vacate the premises in question from today. After expiry of eight months, the appellant shall hand over the physical possession of the building to the respondent, failing which the respondent can execute the decree. 14. With the above observations, the appeal is dismissed at the stage of admission. There shall be no order as to costs. ______________ K.C.BHANU,J Date: 26.08.2011. Gk THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.998 of 2011 Date: 26.08.2011. Gk. [1] (2004) 3 SCC 178