IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU SECOND APPEAL NO.1055 OF 2009 Between : Devisetti Venkateswarlu ... APPELLANT A N D The Commissioner and others. …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL NO.1055 OF 2009 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the judgment and decree, dated 28.08.2009, passed in A.S.No.79 of 2009 on the file of the V Additional District Judge (Fast Track Court), Anantapur, whereunder and whereby, the judgment and decree, dated 13.08.2007, passed in O.S.No.864 of 2000 on the file of the Principal Junior Civil Judge, Anantapur, were confirmed. 2. The appellant herein is the plaintiff and the respondents herein are the defendants, in the suit. 3. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed before the trial Court. 4. The brief facts are that the plaintiff and defendant No.2 were having bunks in the open space and they were eking out their livelihood by running business in their respective bunks. At the same time, defendant No.1 proposed to construct a shopping complex and to let out the buildings on lease. The plaintiff and other occupiers of the site protested the proposed construction. At the intervention of local M.L.A. and Chairman, the Municipality has agreed to allot the shops to all the bunk owners. Accordingly, in the year 1985-86 as per settlement, the Municipality allotted one shop to the plaintiff and one shop to defendant No.2. The plaintiff and defendant No.2 were in good terms at the time when they entered into lease agreement with defendant No.1 and the lease agreement was taken in the name of defendant No.2. They also agreed to pay the monthly rent of Rs.400/- for each shop. The plaintiff and defendant No.2 could not run business in the said shop due to loss and defendant No.2 joined hands with defendant No.3 and entered into an agreement behind the back of the plaintiff and also without the consent of the plaintiff defendant No.2 handed over half portion of the shop to defendant No.3, which is exclusively in his possession and enjoyment. Therefore, the plaintiff and defendant No.3 are continuing in the suit shop as tenants by dividing the shop into two equal portions. The plaintiff and defendant No.3 were actually paying lease amount though the receipts are in the name of defendant No.3. The further case is that defendant Nos.2 and 3 with a malafide intention to play fraud and caused inconvenience and trouble to the plaintiff and misrepresented the Municipal Officials and influenced defendant No.1 to delete the name of the plaintiff from the records. In the year 1986, the plaintiff got registered his shop with the Commercial Tax Officer under APGST by giving the shop address as shop No.3 and he has been doing business for the last 15 years and he has been paying half share of the lease amount to defendant No.2. Subsequently defendant No.3 with an intention to dispossess the plaintiff with the help of defendant No.1 issued a notice to vacate the building, and the same was resisted by the plaintiff. Later defendant No.3 filed O.S..No.783 of 1999 on the file of the Principal Junior Civil Judge, and obtained interim injunction in I.A.No.1924 of 1999. The said suit is pending. Defendant No.1 without giving credence to the representations made by the plaintiff, joined hands with the defendants attempting to evict the plaintiff, though the plaintiff is always paying rent to the plaint schedule property every month but defendant no.1 is refusing to receive the same with an intention to dispossess the plaintiff. The plaintiff is in continuous and physical possession of the suit schedule shops. Plaintiff is not in a position to resist the highhanded acts of the defendants. Hence, the suit. 5. Defendant No.1 filed written statement denying all the averments mentioned in the plaint and admitted the constitution of the shopping complex in the year 1986. He further contended that as per the Municipal records since 1986 defendant No.3 has taken shop No.3 on lease and was continuing as lessee. Defendant No.3 only renewing lease by enhancing the lease amount as per the terms and conditions and executed lease agreement in favour of the Municipality. Neither the plaintiff nor defendant no.2 are no way connected to the suit schedule shop as per the Municipal records. The plaintiff and defendant No.2 never took the shop in question on lease from defendant No.2. He further contended that the Municipality is maintaining Register in which defendant No.3’s name alone is shown as lessee for the last 15 years for shop No.3. In fact, the lease amount is being paid only by defendant No.3. The plaintiff and defendant No.2 are no way connected to the suit schedule shop at any point of time. The plaintiff is never in continuous possession of the suit schedule shop. As per Municipal records, the suit shop was renewed in favour of defendant No.3 for the period from 01.02.2000 to 31.01.2003 by Municipal Corporation. There is no cause of action for the plaintiff to file the suit. There is no contractual obligation either between the plaintiff or defendant No.2 with defendant No.1. Hence, he prays to dismiss the suit. 6. Defendant No.2 filed written statement denying all the averments mentioned in the plaint and contended that he has nothing to do with the plaint schedule shop at no point of time. The plaintiff and himself put up the bunks in the open space for business. He never entered into an agreement of any kind with the plaintiff to participate in the lease for taking shop room jointly for conducting business. He never participated nor made any application to defendant No.1 at any point of time for the lease of the suit schedule property. The suit schedule shop stands in the name of defendant No.3 as per the Municipal records and he is the person who has applied for the said shop and got the same on lease from the Municipality. Thereafter, he instigated defendant No.1 to evict the plaintiff by force does not arise, when the plaintiff has no right or any kind whatsoever over the suit schedule shop. Hence, he prays to dismiss the suit. 7. Defendant No.3 filed written statement denying all the averments in the plaint and contended that defendant no.1 leased out the suit schedule property in favour of him in the year 1986 and since then he is in exclusive possession and enjoyment of the same. Himself and his wife are running Kirana business and coffee powder business in the suit shop. The lease is extended from time to time in favour of him till 31.01.2003 as per the proceedings of the commissioner. His further case is that the plaintiff is not in possession of any portion of the suit schedule shop at any point of time. The plaintiff ever shared the rent either with defendant No.2 or himself. Since the plaintiff is never in possession of the suit schedule property, the question trying him to evict the plaintiff does not arise and hence, he prays to dismiss the suit. 8. On the basis of above pleadings, the following issues have been settled by the trial court for trial: “ 1. Whether the plaintiff is entitled to the suit claim as prayed for? 2. To what relief?” 9. During trial, on behalf of plaintiff P.Ws.1 and 2 were examined and Exs.A.1 to A.6 and Ex.C.1 Commissioner’s report were marked. On behalf of defendants, 1st defendant was examined himself as D.W.1 but no documents were marked. D.2 and D.3 did not adduce either oral or documentary evidence. 10. The trial Court after considering the evidence on record, came to the conclusion that there is no material filed by the plaintiff so as to continue in the disputed property and therefore, he is a trespasser and a trespasser is not entitled for injunction against a true owner and accordingly dismissed the suit. On appeal, the said judgment and decree were confirmed. Challenging the same, the present Second Appeal is filed. 11. Learned counsel for the appellant raised the following substantial questions of law: “a) whether the judgment and decree of the Courts below in refusing to grant injunction in favour of the plaintiff particularly when the Advocate Commissioner in his report in Ex.C.1 had stated that the plaintiff is in possession of the suit schedule shop? b) whether the findings of the Courts below in terming the plaintiff as a trespasser is correct in law when the plaintiff is produced all documentary evidence i.e., Exs.A.1 to A.65 coupled with Commissioner’s report Ex.C.1 which would establish the possession and particularly Ex.A.6 to A.25 which would establish that the plaintiff/appellant is in possession of the suit schedule shop as a tenant? c) whether the judgments of the Courts below are correct in law when they have failed to draw adverse inference against the defendant No.1 particularly when defendant No.1 municipality has failed to produce the records which are in their custody? d) whether the findings of the Courts below are correct in law in view of the additional evidence filed by the plaintiff appellant namely the plaint copy in O.S.No.322 of 2004 on the file of the Principal Junior Civil Judge, Anantapur which would establish the plaintiff possession over the suit schedule property from the year 1986 onwards?” 12. Learned counsel for the appellant/plaintiff contended that the Municipal Corporation also filed a suit for eviction against him; that the appellant cannot be evicted except by due process of law; that till disposal of O.S.No.322 of 2004 on the file of the Principal Junior Civil Judge, Anantapur, the appellant cannot be evicted; that the Commissioner’s report as well as the receipts issued about the payment of rent and the receipts issued by the Commercial Tax Officer would clearly reveal about possession of the appellant in respect of the schedule shop and therefore, he cannot be evicted except by due process of law. 13. The contention of the learned counsel for defendant No.3 is that the shop was allotted to him and therefore, the appellant has no right to continue in the schedule shop and the concurrent findings of both the Courts below need no interference by this Court in view of the fact that the findings are based upon proper appreciation of evidence on record. 14. In view of amendment to Section 100 CPC filing of Second Appeal is not automatic or routine. Unless there is a substantial question of law involved in the matter, ordinarily the second appeal need not be admitted. The substantial question of law is not defined in CPC. But it must mean, the right, which affects the parties substantially. Unless findings are perverse or the findings are based upon inadmissible evidence or admissible evidence has been over looked ordinarily this Court would not interfere with the same. 15. No doubt as rightly contended by the learned counsel for the appellant that the receipts issued by the Commercial Tax Department, which are marked as Exs.A.3 to A.5 and Ex.A.52 to 67 coupled with Ex.C.1 Commissioner’s report would clearly go to show that the appellant is in possession and enjoyment of the property. The possession however long cannot be enure to the benefit of the appellant unless he shows that he was inducted into possession lawfully. To show that the appellant was lawfully inducted into petition schedule shop, he has not filed any document to substantiate his case. Therefore, however long he was in possession of the property, unless he was inducted lawfully, he is not entitled for injunction. The trial Court came to the conclusion that because the appellant failed to establish his right to continue in possession, he becomes a trespasser and that finding cannot be said to be perverse under no circumstances. Admittedly, the plaint schedule shop belongs to respondent No.1-Municipal Corporation, Anantapur, and the plaint schedule shop is one of the shops in the complexe in Anantapur. Therefore, the appellant failed to establish that he has got a legal right conferred by the Municipality to continue in the premises. In the absence of such right given by the Municipality, permitting him to do business in the shop either by way of licensee or a lessee does not arise and in such circumstances he can be certainly termed as trespasser. In view of the fact that the appellant is the trespasser he cannot claim injunction against a true owner. Therefore, the findings of both the Courts below are based upon proper appreciation of evidence on record and there are no grounds to interfere with the same and accordingly the Second Appeal is liable to be dismissed. 16. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _______________ K.C.BHANU, J FEBRUARY 14, 2011. YVL