IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND TEN PRESENT THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI SECOND APPEAL No.1183 of 2008 Between Sajjan Rama Mohan Rao Appellant AND Anmirudh A.N. Tuljapurkar and others Respondents Counsel for the appellant: Sri P. Veera Reddy Counsel for the Respondent: Sri I. V. Ramesh THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI SECOND APPEAL No. 1 1 8 3 OF 2008 JUDGMENT : This Second Appeal is filed assailing the judgment and decree dated 11.09.2008 passed by the learned Chief Judge, City Civil Court, Hyderabad, in A.S. No. 624 of 2006 whereby the learned Judge dismissed the appeal confirming the judgment and decree dated 28.9.2006 passed by the learned V Junior Civil Judge, City Civil Court, Hyderabad, in O.S. No. 2641 of 2004 granting two months time to the tenant – appellant herein to handover the vacant physical possession of the suit schedule property viz., shop bearing MCH No.7-1-77/2/A and its rear side ACC roof structure, comprising of kitchen and store viz., MCH No. 7-1-77/2/F, a dining hall viz., MCH No. 7-1-77/2/G and rear-side residential portion viz., MCH No. 7-1-77/2/H, comprising of rooms, halls, W.C. Bath, borewell, situated at Dharamkaran Road, Ameerpet, Hyderabad, to the plaintiffs –respondents herein. 2. The plaintiffs who are respondents herein are the absolute owners of the suit schedule property while the appellant was inducted as a tenant on a monthly rent of Rs.500/- on 1.9.1991, which was enhanced to Rs.600/- with effect from 1.3.1992. Thereafter, the parties entered into an agreement on 17.2.1993 and the appellant herein had made temporary constructions on the suit site and an amount of Rs.1.00 lakh spent by the appellant was agreed to be adjusted towards arrears of rent. After completion of the construction, another agreement was entered into enhancing the rent to Rs.4,200/- per month on 1.9.1993 and thereafter, lease agreements were entered into on 15.3.1998 and a sum of Rs.1.00 lakh invested by the appellant was adjusted and the rent was enhanced to Rs.5,000/- per month exclusive of taxes and charges. Thereafter, the rent was enhanced to Rs.6,000/- per month from 1.12.1998. It is case of the respondents that in the fire accident that occurred in the intervening of 27/28.2.2003, their residential house beating No.4-5-728, Isamia Bazaar, Hyderabad, was completely gutted and, as such, for their bona fide requirement, they got issued a legal notice dated 5.4.2004 to the appellant to vacate the premises and handover possession of the same. 3. While denying the fire accident in May, 2003, it is pleaded by the appellant herein that at the inception of the tenancy itself, he requested the respondents seeking permission to construct temporary structures for hotel business, to which they agreed and assured to refund the money spent by him. Thus the appellant in all spent a sum of Rs.4.00 lakhs including of Rs.1.00 lent as towards advance at the time of execution of lease deed dated 5.10.1993. As such, on receipt of the notice dated 5.4.2004, the appellant got issued reply notice dated 19.4.2004 requesting the respondents to refund Rs.4.00 lakhs, to which they did not issue rejoinder and, as such, without refunding the above said sum, they cannot resort to terminate the tenancy by issuing notice under Sec.106 of the Transfer of Property Act. 4. On behalf of the plaintiffs – respondents, PWs.1 to 3 were examined and marked Exs. A-1 to A-19 while on behalf of the defendant - appellant, the appellant himself was examined as DW.1, but document was marked. 5. The trial court on extensive consideration of evidence, both oral and documentary, decreed the suit as prayed for directing the appellant herein to vacate the suit schedule property and to deliver peaceful and vacant possession thereof to the respondents 1 to 3 herein within three months while reserving liberty to them to file separate application for ascertainment of damages. 6. Aggrieved thereby, the appellant herein preferred appeal in A.S. No. 624 of 2006 and the learned Chief Judge, City Civil Court, Hyderabad, dismissed the appeal confirming the judgment passed by the trial court granting two month time to handover vacant possession thereof. 7. Aggrieved by the same, the defendant preferred this Second Appeal under Sec. 100 C.P.C., among other grounds, raising substantial questions of law, touching notice issued under Sec. 106 of the Transfer of Property Act, which, in fact, touch evidence on record, which will be presently discussed. 8. Before adverting to the substantial questions of law, be it noted that the scope of this court under Sec. 100 C.P.C. is quite narrow. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, let us examine whether any interference is warranted, more particularly in view of the concurrent findings recorded by both the courts below. 9. As can be seen from record and judgment of the courts below, though at one stage, the appellant denied title of the respondents in respect of the suit schedule property, the relationship of the appellant with the respondents as tenant and landlords is established, by virtue of the overwhelming evidence available on record viz., Exs. A2 to A- 5, to which PW-3, Manohar Prasad is an attestor and also in admissions made by the tenant – appellant herein. There is further admission on the part of the appellant that the constructions in respect of H.No.7-1-77/2/B to D and 7-1-77/2/A was made by the respondents themselves. This apart, Exs.A-5 a fresh lease deed, which is executed subsequent to Ex.A-4, shows that the rent was agreed at Rs.5000/- with effect from 1.12.1997. Clause 6 of Ex.A-4 shows that the amount of Rs.1.00 spent by the appellant stood adjusted by 30.11.1997. Thus, the claim of Rs.4.00 lakhs raised by the appellant is not substantiated by any material on record. 10. In view of Exs. A-7 to A-9 the contention of the appellant that the fire accident did not take place is liable to be negatived. The court below adverting to the admission of PW-1 that subsequent to the fire accident, as the appellant did not vacate the suit schedule property, they got repaired the house and are staying, held that when the owner of the property is in bonafide requirement of the same, the tenant cannot resist the same. Admittedly, the tenancy is month to month terminable by fifteen days notice. Hence, the contention of the appellant that the notice issued under Sec. 106 of the Transfer of Property Act is in valid, cannot be countenanced, inasmuch as notice was admittedly issued on 5.4.2004 giving fifteen days clear time. 11. The lower appellate court has extensively considered the evidence and has rightly observed that the material gives an impression that the appellant had taken untenable pleas and also at one stage denied the title of the respondents to the suit schedule property and that the findings are based on sound reasoning and on proper appreciation of evidence. Having gone through the entire material available on record and the findings recorded by both the courts below, I am of the considered view that both the courts below have appreciated the evidence, both oral and documentary, in right perspective and the findings arrived at by both the courts below, do not call for any interference. Consequently, I do not find any question of law muchless substantial question of law. 12. The second appeal fails and sans merit and the same is dismissed in limini. No order as to costs. ___________________________ JUSTICE T. MEENA KUMARI 16-04-2010 I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI SECOND APPEAL No. 1 1 8 3 OF 2008 CIRCULATION ENTRY No.4 2 Date: 16-04-2010 Court Master : I s L Computer No. 43