IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.117 OF 2003 Between:- Lakshminarayana Devda and another …Appellants A n d Smt.P.Ramulamma and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.117 OF 2003 JUDGMENT: This second appeal is directed against the judgment and decree dated 28.11.2002 in A.S.No.211 of 2000, on the file of the IX-Additional Chief Judge, City Civil Court, Hyderabad, wherein the said appeal filed by the appellants herein, was dismissed, confirming the judgment and decree dated 04.05.2000 in O.S.No.892 of 1998, on the file of the II-Junior Civil Judge, City Civil Court, Hyderabad. 2. Heard the learned counsel for the appellants and the learned counsel for the respondents. Perused the record. 3. Respondents 1 and 2 herein filed the suit against the appellants for recovery of possession, arrears of rent and mesne profits. According to the plaintiffs, the 1st plaintiff is owner of the schedule building bearing No.15-2- 312, situate at Kishangunj, Hyderabad and the 2nd plaintiff is the son of the 1st plaintiff and that the said premises was originally let out to Ramlal Devda, father of the defendants, under an oral lease and the said Ramlal Devda was carrying on business in the entire building, but, however, was obtaining receipts for payment of rents in the name of the defendants splitting the tenancy for the purpose of tax. It is further pleaded by the plaintiffs that in October, 1997, Ramlal Devda asked plaintiff No.2 to change the tenancy in favour of D-1 alone and the rent was being paid in the name of D-1 at the rate of Rs.1,080/- per month. The plaintiffs issued a notice dated 08.12.1997 under Section 106 of the Transfer of Property Act terminating the tenancy w.e.f 31.12.1997. D-1 received the notice on 09-12-1997. As the rent is more than Rs.1,000/- per month, the provisions of the Rent Control Act are not applicable. The defendants gave reply dated 15.12.1997 with false allegations. Hence, the suit for eviction. 4. The 1st defendant remained ex parte and the 2nd defendant filed written statement contending that there is no termination of tenancy as per law and they filed R.C.Nos.176 and 177 of 1998 and they were disposed of by giving a direction to deposit the rents into bank and that D-2 and D-3 also filed O.S.Nos.5086 and 5087 of 1997 for permanent injunction. The defendants further alleged that there were no arrears of rent and there is no person by name Laxminarayan Suresh Chand Devda described as D-1 and no relief can be claimed against a non-existent person (D-1). D-2 is tenant of plaintiff No.2 in respect of ground floor on a monthly rent of Rs.527.50 Ps and D-3 is the tenant of 1st floor and 2nd floor on a monthly rent of Rs.552.50 Ps. The plaintiffs have been collecting the rents for the respective portions from D-2 and D-3 as enhanced. As the plaintiff refused to receive the rents, defendants filed petitions under Section 8(5) of the Rent Control Act. Thereafter, the plaintiffs filed the present suit for eviction. 5. On the strength of the above pleadings, the trial Court framed the following issues: i. Whether the notice dated 08.12.1997 is a valid quit notice? ii. Whether defendants are liable to be evicted from the suit premises? iii. Whether plaintiff is entitled to mesne profits? iv. To what relief? 6. During the course of trial, P.W.1 was examined and Exs.A1 to A-11 were marked on behalf of the plaintiffs. D.W.1 was examined and Exs.B-1 to B-20 were marked on behalf of the defendants. 7. On issue Nos.1 and 2, the trial Court held that the notice dated 08.12.1990 is a valid notice and D-2 and D-3 are liable to be evicted from the suit premises. On issue No.3, the trial Court held that the plaintiffs are entitled for mesne profits at the rate of Rs.2,500/- per month from 01.01.1998 till delivery of possession. Accordingly, the suit was decreed. Aggrieved by the same, the defendants preferred an appeal in A.S.No.211 of 2000. By the impugned judgment dated 28.11.2002, the learned Additional Chief Judge dismissed the appeal and confirmed the judgment and decree of the trial Court. Hence, the present second appeal by the defendants. 8. At the time of admitting the second appeal, this Court observed that Ground No.h of the grounds of appeal is the substantial question of law that arises for adjudication. The question raised in Ground No.h is – when the original tenant, Ramlal Devda, who is the father of the appellants, is still alive, can the suit be filed without impleading him as a defendant and without determining the tenancy of the original tenant, even if he is not conducting the business. Ground No.i of the grounds of appeal goes along with Groud No.h and is to the effect whether the suit is maintainable on the basis of Ex.A-8 quit notice under Section 106 of the Transfer of Property Act which was never issued to Ramlal Devda, the original tenant. 9. The substantial question of law which arises for consideration is – whether there has been a valid quit notice under Section 106 of the Transfer of Property Act and whether the suit is maintainable in the absence of such notice. 10. The suit is filed by the respondents/plaintiffs for eviction of the appellants/defendants from the plaint schedule building bearing Municipal door No.15-2-312 comprising ground floor, first floor and second floor, based on the quit notice Ex.A-8 issued under Section 106 of the Transfer of Property Act. Even in the plaint, it is averred that originally the suit schedule premises was let out to Ramlal Devda, father of the defendants, for the purpose of carrying on business in the entire building in the name of Champalal Bati in the first and second floors and in the name of Bhagwan Corporation in the ground floor. It is further alleged in the plaint that the said Ramlal Devda was paying the rents. Thus, as per the averments in the plaint, it was Ramlal Devda, who was the tenant of the entire building and paying rents and that he was carrying on the business in two different names in different floors in the said building. It is alleged that Ramlal Devda was obtaining receipts for payment of rent in the name of his two sons, the defendants, for the purpose of tax, but the plaint would assert that it was Ramlal Devda, who was the tenant in occupation of the building and was paying the rents. It is further alleged in the plaint that in October, 1997 Ramlal Devda asked the second plaintiff to club the tenancy in the name of 1st defendant alone and since then, the tenancy for the entire building comprising three floors stood in the name of 1st defendant alone. Originally, the suit was filed against the 1st defendant alone, who is described as Laxminarayan Suresh Chand Devda, s/o Ramlal Devda. The defendants contended that no such person, described as 1st defendant, was in existence. Even according to the plaintiffs, Ramlal Devda has two sons by name Laxminarayan Devda and Sureshchand Devda and their names are referred to in the plaint, but they were not impleaded initially. The suit was filed clubbing those two names into one and showing the name of Laxminarayan Sureshchand Devda as defendant. Subsequently, the two sons of Ramlal Devda were impleaded as D-2 and D-3 as per orders dated 19.04.1999 in I.A.No.273 of 1999. Even in the amended plaint copy, the name of the 1st defendant is not deleted and the body of the plaint is also not amended as to in the name of which of the defendants the tenancy was changed w.e.f from October, 1997. Admittedly, the 1st defendant is a non-existing person. D-2 filed a written statement and D-3 adopted the same contending that there is no person by name Laxminarayan Sureshchand Devda, the alleged 1st defendant, and, therefore, the allegation that since September, 1997, the alleged 1st defendant is a tenant paying rent of Rs.1,080/- per month for the entire building, does not arise for consideration. According to the defendants, presently D-2 is a tenant of 1st plaintiff in respect of ground floor portion and D-3 is the tenant of 2nd plaintiff in respect of 1st and 2nd floor portions. The defendants specifically contended that there is no valid quit notice issued under Section 106 of the Transfer of Property Act. 11. The suit is filed based on quit notice Ex.A-8 dated 08.12.1997 purported to have been issued under Section 106 of the Transfer of Property Act by the plaintiffs. The said notice was addressed to Laxminarayan Sureshchand Devda, s/o Ramlal Devda. The 2nd defendant got issued reply notice Ex.A-10 dated 15.12.1997, wherein it is stated specifically that the alleged person by name Laxminarayan Sureshchand Devda, s/o Ramal Devda does not exist and the notice was got issued mischievously mentioning false and fictitious name. In the said reply notice, it was further contended that the tenancy in favour of D-2 is separate and independent and he is entitled to the protection under the Rent Control Act. It was also mentioned in Ex.A-10 that Sureshchand Devda (D-3) is a tenant of first floor and second floor on a monthly rent of Rs.552.50 Ps and the said tenancy is separate and distinct from the tenancy of D-2. In respect of the said reply notice Ex.A-10, the plaintiffs filed the suit initially against Laxminarayan Sureshchand Devda, a non-existent person as if the said person was a tenant and the tenancy in favour of such person was terminated by issuance of notice under Section 106 of the Transfer of Property. The said notice Ex.A-8 does not have any validity as it was issued to a non-existent person. In the reply, Ex.A-10 itself, D-2 has explained that he received the notice as his name was appearing in the first part of the addressee’s name and only after opening the notice and reading the contents it came to light that it was addressed to a false and fictitious name and, therefore, the reply notice was given without prejudice to his rights. Even after D-2 gave a reply-Ex.A-10, the plaintiffs have not chosen to issue any separate notice to D-2 and D-3 under Section 106 of the Transfer of Property Act. According to the averments in the plaint, the entire premises is occupied by the ‘defendant’ and the rent is Rs.1,080/- per month from September, 1997. The said ‘defendant’ is referable to Laxminarayan Sureshchand Devda against whom the suit was originally filed and even after impleadment of D-2 and D-3, the body of the plaint was not amended and the original averments which are referable to 1st defendant were allowed to continue. Thus, the plaintiffs went to trial based on their pleading that Laxminarayan Sureshchand Devda, the original defendant, was the tenant on a rent of Rs.1,080/- per month, in spite of knowledge and awareness that Laxminarayan Devda and Sureshchand Devda are two sons of Ramlal Devda and there is no such person or entity bearing the name Laxminarayan Sureshchand Devda. There is no quit notice issued to D-2 and D-3 under Section 106 of the Transfer of Property Act. There is also no quit notice issued to Ramlal Devda, the original tenant. If according to the plaintiffs, Ramlal Devda continued to be the tenant, the notice under Section 106 of the Transfer of Property Act ought to have been issued to him. If according to them subsequently the tenancy was changed in the name of the sons of Ramlal Devda, the notice under Section 106 ought to have been issued to the sons i.e., Laxminarayan Devda and Sureshchand Devda. No such notices were issued at any time. The notice Ex.A-8 was issued to a non-existing person Laxminarayan Sureshchand Devda. The plaintiffs have not taken any remedial steps even after issuance of Ex.A- 10 reply notice. It must, therefore, be held that there is absolutely no valid notice issued under Section 106 of the Transfer of Property Act either to Ramlal Devda or to his two sons and based on the notice Ex.A-8 which was issued to a non-existing person and against whom the cause of action is said to have been arisen, the suit is not maintainable. The findings of the Courts below to the effect that after impleadment of D-2 and D-3, the defect in the notice got cured is unsustainable, as there is no notice issued at all either to the original tenant Ramlal Devda or to his two sons. Thus, there has been no valid termination of the tenancy by issuing the quit notice under Section 106 of the Transfer of the Property Act to the proper person, who according to the plaintiffs, is the tenant. In the absence of such valid quit notice, duly terminating the tenancy, the suit for eviction is not maintainable. The impugned judgments of the Courts below are wholly unsustainable and they are accordingly set aside and consequently the suit stands dismissed. It is, however, open to the plaintiffs to issue valid notice under Section 106 of the Transfer of Property Act duly terminating their tenancy to the person/persons, who according to them is/are tenant/tenants and initiate appropriate proceedings for their eviction in accordance with law. 12. In the result, the second appeal is allowed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 15th December 2011 Lrkm.