IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTIETH DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA SECOND APPEAL No.1559 of 2007 Between: Dachepally Srinivas Rao ..... APPELLANT AND Shakeel Ahmed ..... RESPONDENT JUDGMENT: On 28-12-2007 this court made the following order: “In view of the substantial questions of law framed in the grounds of appeal, admit the Second Appeal.” 2. In S.A.M.P.No.3416 of 2007 this court granted interim stay subject to the condition of petitioner making payment of Rs.15,000/- and costs within a period of four weeks. It is stated that the order had been complied with and subsequent thereto also certain payments had been made. Sri J. Ashvini Kumar, the learned counsel representing the appellant had taken this court through the substantial questions of law specified in the grounds of Second Appeal and would maintain that the findings recorded by the Court of first instance and also the Appellate Court in relation to service of notice under Section 106 of the Transfer of Properties Act (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) cannot be sustained. The learned counsel also would further maintain that even otherwise the other findings recorded relating to the quantum also being erroneous and the said findings are to be disturbed. 3. Per contra, Sri M. Basith Ali Yavar, learned counsel representing the respondent inasmuch as deliberately stated that the appellant avoided service of notice and the endorsement is not claimed. It is to be taken as proper service of notice in the light of the provisions of Section 106 of the Act. 4. The learned counsel strongly relied on the decision of this court in A. Govindraj Goud v. Vikranthi and Company[1]. While further elaborating his submissions the learned counsel would submit that the other questions being pure questions of fact in the light of the concurrent findings recorded by both the Courts below, this is not a fit case to be interfered with. 6. Heard the learned counsel on record. 7. The substantial questions of law framed in the grounds of Second Appeal reads as hereunder: 1. Whether a suit for eviction can be decreed in the absence of proper service of notice under Section 106 of the Transfer of Property Act. 2. Whether a suit for eviction can be decreed in the absence of notice under Section 106 of the Transfer of Property Act in respect of a tenant holding over the subject premises. 3. Whether Court can direct the plaintiff to seek mesne profits in the absence of any pleadings in the profit. 8. For the purpose of convenience the parties hereinafter would be referred to as shown in O.S.No.7867 of 2004 on the file of the III Junior Civil Judge, City Civil Court, Hyderabad. 9. The plaintiff filed the suit praying for the relief of eviction and also for arrears of rent and for future mesne profits. The averments made in the plaint are hereunder: The plaintiff is the owner of the mulgi bearing No.15-1-504, situated at Feelkhana, Hyderabad admeasuring 250 Sq. feet. The defendant obtained the mulgi on lease from the plaintiff in April 1995 for a period of 11 months after expiry of the period tenancy is month to month and oral. The rate of rent is Rs.3,275/- p.m. by 5th of every English calendar month. The defendant has to pay electricity charges, property tax to the concerned authorities apart from the rent. The defendant is irregular in payment of rent and not paying rents of the suit mulgi month to month. On 29-11-2004 a legal notice was issued by this plaintiff to the defendant by the time the defendant is in arrears of rent from November, 2004 and December, 2004 a monthly Rs.6,550/- withhold the amount without any reason. The plaintiff terminated tenancy of the defendant. The defendant is liable to pay at the rate of Rs.7,000/- p.m. for illegal occupation. The notice issued by the plaintiff returned un-served. The defendant has to discharge the arrears of property tax as well as electricity consumption charges. Therefore, the defendant is liable to evict the schedule property and liable to pay damages as well as arrears of the rent. 10. In the written statement the appellant in the Second Appeal – the un-successful defendant pleaded as hereunder: It is true that the plaintiff is the owner of suit mulgi and it is also a fact that the defendant is tenant since April 1995 at the rate of Rs.3,275/- p.m. rent shall be paid on or before 5th of every month. The defendant is agreed to pay electricity charges of the suit mulgi. But he is not agreed to pay the property tax. It is denied that the defendant is irregular in payment of monthly rent. It is not correct by the time of issuance of notice the defendant is in arrears of rent. This defendant paid rent till December, 2004 and the rent of January 2005 was offered but the plaintiff refused to received the same for the reasons best known to him. The plaintiff is liable to prove that the mulgi is fetch at the rate of Rs.7,000/- per month. There is no cause of action arosed to file the present suit. The defendant is regular in payment of rent with ulterior motive filed the present suit. The suit is not maintainable since the plaintiff failed to issue the statutory notice. The defendant never received any such notice of the termination, therefore, the suit is defective and hence, the suit is liable to be dismissed on this ground. 11. On the strength of this pleadings before the trial Court the following issues were settled: 1. Whether the quit notice dated 29-11-04 issued by plaintiff to the defendant is valid under law ? 2. Whether the defendant is liable to be evicted from the suit schedule mulgi ? 3. Whether the plaintiff is entitled to recover the arrears of rent as prayed for ? 4. Whether the defendant is not liable to pay the Municipal Property Tax as prayed for ? 5. Whether the defendant paid the rents for the month of November and December 2004 as claimed by the plaintiff ? 6. Whether the plaintiff is entitled to recover mesne profits as prayed for ? 7. To what relief ? 12. The trial Court recorded the evidence of PW-1 and DW-1 and also marked Exs.A-1 to A-6 and came to the conclusion that the suit to be partly decreed with costs directing the defendants to deliver and hand over the suit mulgi admeasuring 250 Sq. feet situated at Feelkhana, Hyderabad to the plaintiff within sixty (60) days from the date of decree and judgment and the plaintiff is entitled to recover Rs.6,550/- from the defendant towards arrears of rent for the month of November and December 2004 and the plaintiff also is entitled to recover admitted arrears of rent @ Rs.3,275/- per month from January, 2005 till the date of delivery of possession subject to payment of court fee and the plaintiff was given liberty to file separate application to ascertain future mesne profits under Order 20 Rule 12 of the Code of Civil Procedure. 13. Aggrieved by the same, the unsuccessful defendant carried the matter by way of appeal A.S.No.165 of 2007 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad and the appellate court at paragraph No.6 had formulated the following points for consideration: 1. Whether there is valid notice of termination of lease ? If so, whether the defendant has legal right to continue in possession of the demised premises ? 2. Whether the decree granted by trial court is not sustainable for any other reason ? 14. The learned Judge recorded reasons at paragraph Nos.7 to 9 and ultimately came to the conclusion that there are no grounds to interfere with the decree and judgment of the trial Court and accordingly, the appeal was dismissed with costs and the appellant to vacate the premises within a period of 60 days from the date of judgment otherwise the plaintiff is at liberty to execute the decree as per law. 15. Aggrieved by the same, the present Second Appeal had been preferred. 16. The only question, which had been argued in elaboration is relating to the validity of the quick notice issued under Section 106 of the Act. It is needless to say that the concurrent findings had been recorded by both the Courts of first instance and Appellate Court in this regard. 17. In A. Govindraj Goud’s case cited supra it is stated that notice of termination of tenancy under Section 106 of the Act when it was sent by registered post to correct address and when it was returned un-served the landlord need not pursue the other modes of serving notice and notice is deemed to have been duly served and the mere fact that the additional house number in which the tenant was residing is given does not alter the situation. 18. The evidence of PW-1 is available who had deposed in detail relating to all the facts. As against this evidence of PW-1 the evidence of DW-1 is available. Several of the facts are not in controversy. Ex.A-1 is the office copy of legal notice dated 29-11-2004, Ex.A-2 is returned envelop, Ex.A-3 is original certificate of posting, Ex.A-4 is the tax receipt dated 03-01-1990, Ex.A-5 is another tax receipt and Ex.A-6 is the acknowledgment. Relating to the quantum of decree and decree relating to arrears of rent certain submissions had been made. It is needless to say that predominantly it is a question of fact and in the light of the concurrent findings recorded by both the courts below such findings normally not to be disturbed in a Second Appeal and hence, the said findings are hereby confirmed. 19. Liberty had been given to file separate application relating to ascertainment of future mesne profits inasmuch as both the court of first instance and also appellate Court appreciated the oral and documentary evidence and recorded concurrent findings. This court is thoroughly satisfied that the Second Appeal is devoid of merits and the same shall stand dismissed. However, in the facts and circumstances, without costs. 20. Inasmuch as the decree is for eviction and for other certain appropriate reliefs. The appellant-defendant is granted two months time to vacate the premises. ___________________ P.S. NARAYANA, J April 20, 2010. Pn THE HON'BLE SRI JUSTICE P.S. NARAYANA SECOND APPEAL No.1559 of 2007 April 20, 2010 [1] 2004 (3) ALD 95