HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.1464 OF 2011 DATE:25-11-2011 BETWEEN Tatavari Jayalaxmi …Appellant AND Yekkala Satyanarayana (died) per L.R. …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.1464 OF 2011 JUDGMENT: Unsuccessful plaintiff in the Courts below filed this second appeal against the judgment and decree of IX Additional District Judge (Fast Track Court), Krishna District at Machilipatnam dated 29.9.2006 dismissing A.S.No.20 of 1999 and confirming the judgment and decree of First Additional Junior Civil Judge, Machilipatnam dated 18.1.1999 dismissing the suit in O.S.No.302 of 1996 filed by the plaintiff for declaration that she is the absolute lessee of the municipal stall No.115, situated in Diamond Bazar Municipality and for recovery of possession of the part of stall which is in the hands of the defendants. For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court. Plaintiff instituted the above suit stating that her husband late Narasimha Rao took the municipal shop No.115, situated at Diamond Bazar, Koneru Centre, Machilipatnam on lease about 30 years back and since then, he was paying the lease amount and also rentals regularly to the Municipality and doing business in repairing lights and kirana shop. As her husband could not manage the entire business, took the assistance of first defendant in running kirana business and that he was managing both the businesses till he died. During the life time of her husband, the fee of licence and other taxes were being paid by him only in the name of first defendant for running kirana shop. Her husband paid Rs.500/- towards salary to the first defendant for the assistance rendered by him in the business. Her husband died on 23.12.1989 leaving herself and other two sons and after his death, the plaintiff has been running the lights repairing shop and Kirana shop with the assistance of her elder son and also first defendant. According to her, her late husband took the R.C. for running kirana shop in the name of first defendant only to avoid income tax. Second defendant is the son of first defendant. According to plaintiff, from 5.8.1996 onwards the plaintiff is not being allowed to run the business of kirana by both the defendants, they threw out the provisions and occupied half portion highhandedly. The plaintiff has been paying rent to the Machilipatnam Municipality continuously in her name as such she is the absolute lessee. The defendants illegally occupied the stall No.115 and their possession is illegal. The defendants are liable for eviction from the suit schedule stall and therefore, she filed the suit. Contesting the suit, first defendant filed a written statement, which was adopted by the second defendant. It is inter alia contended that the suit as such is not maintainable without impleading the Municipality, which is the real owner of the schedule property as a party-defendant to the suit. It is pleaded that there was an understanding between the late husband of the plaintiff and first defendant, according to which, the husband of the plaintiff was carrying on lights repairing shop in a part of the suit schedule property and the first defendant is carrying on kirana business in other part of the property. The rent is being paid in half portion by the plaintiff’s husband and after his death, the plaintiff for her light repairing shop and for half portion the first defendant is paying rents and obtaining receipts from municipality. The R.C. was taken by the defendant himself in his name to run kirana business and also paying other legal taxes with the knowledge of the plaintiff for the last 30 years. On the above pleadings, the trial Court framed necessary issues for trail. To substantiate the case, on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A.1 to A.20 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B.1 to B.76 were marked. Exs.X.1 to X.3 were marked through witness- P.W.2. After considering the oral and documentary evidence, the trial Court dismissed the suit holding that all the receipts filed would show that the husband of the plaintiff and the first defendant paid rents to the municipality. Whereas under Ex.B.6, dated 23.9.1996, first defendant alone paid part of the rent to the municipality. P.W.2 also clearly admitted about Exs.B.1 to B.6 when they were confronted in his cross- examination. As it has been established that the municipality is collecting rents from both the parties, the trail Court held that the plaintiff failed to prove that she is the absolute lessee of the plaint schedule premises and therefore, she is not entitled for the declaration as sought for. On appeal being filed, the lower appellate after re- appreciation of the entire evidence dismissed the appeal confirming the findings of the trial Court. Heard the learned counsel for the appellant and perused the material available on record. Admittedly, the plaintiff is claiming leasehold rights over the schedule premises stating that her husband obtained lease of the premises from Machilipatnam Municipality. But she has not chosen to implead the Municipality as party-defendant to the suit. Though various other proceedings are pending between the parties before this Court in the writ petitions with regard to the leasehold rights, the same are not necessary to be dealt in this case. Suffice it to say the plaintiff has no independent right over the schedule property, in respect of which she is claiming leasehold rights. Further the defendants were able to establish that the municipality is collecting the lease amount from the first defendant to the extent of half portion of the schedule premises. Both the plaintiff and the defendants have jointly paid the rents to the municipality. In that view of the matter, the municipality is a proper and necessary party to substantiate the plea of the plaintiff that her late husband was the lease-holder of the entire portion of the premises and as such the suit is bad for non-joinder of necessary party. On appreciation of the entire evidence in proper perspective, both the Courts concurrently held that the plaintiff failed to establish her exclusive leasehold rights over the schedule premises. No question of law much less substantial question of law arises for consideration to admit the second appeal. The second appeal is accordingly dismissed. However, this judgment will not come in the way of the plaintiff in her establishing grant of lease exclusively to her husband and her succession to the lease hold rights over the property in question in appropriate proceedings. No order as to costs. _______________ A. GOPAL REDDY, J. NOVEMBER 25, 2011 Tsr.