IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA S.A.No.802 of 2004 Between: Bandi Prabhakara Rao ..... APPELLANTS AND Shaik Johny Saheb ..... RESPONDENT a n d S.A.No.1150 of 2004 Between: Bandi Saraswathi and another ..... APPELLANTS a n d Shaik Johny Saheb ..... RESPONDENT COMMON JUDGMENT: These two Second Appeals are being disposed of by a common order in view of the parties being the same and the subject matter also being the same. 2. S.A.No.802 of 2004 was admitted on 23-07-2004 and this court made the following order: “Admit in view of substantial question of law that arises for consideration as to whether the Court below were right in giving a finding that since the suit for eviction is filed, no permanent injunction can be granted against the real owner from taking possession of the schedule property.” 3. The appellant in S.A.No.802 of 2004 is the plaintiff in O.S.No.25 of 1996 on the file of the Junior Civil Judge, Pithapuram who filed the said suit for permanent injunction restraining from interfering with his possession and enjoyment of his tenancy right over the premises covered in the plaint schedule property till the plaintiff is evicted under due process of law through proper legal proceedings. 4. The trial Court recorded the evidence of PWs.1 and 2 and DW-1 and marked Exs.A-1 to A-18 and Exs.B-1 to B-8 and ultimately came to the conclusion that the plaintiff is not entitled to the relief as prayed for and accordingly dismissed the suit without costs. 5. Aggrieved by the same, the matter was carried by way of appeal A.S.No.19 of 2003 on the file of the Senior Civil Judge, Pithapuram. The appellate Court also dismissed the appeal without costs. 6. Aggrieved by the same, the present Second Appeal has been preferred. The substantial questions of law on the strength of which the Second Appeal had been admitted already had been referred to supra. 7. The defendant in the aforesaid suit filed O.S.No.30 of 1996 on the file of the Junior Civil Judge, Pithapuram as against Bandi Saraswathi and Bandi Prabhakararao and it is needless to say that the second defendant in the said suit was the plaintiff in O.S.No.25 of 1996 aforesaid. The said suit was filed for recovery of arrears of rent and also for possession of the plaint schedule property after evicting the defendants from the plaint schedule property and directing the defendants to deliver the possession of the plaint schedule property. 8. The learned Junior Civil Judge, Pithapuram recorded the evidence of PW-1 and DWs-1 and 2, marked Exs.A-1 to A-7 and Exs.B-1 to B-18 and ultimately came to the conclusion that the plaintiff is entitled to the decree as prayed for and the defendants were directed to pay Rs.15,420/- towards arrears of rent to the plaintiff and defendants 1 and 2 directed to gave vacant possession of the plaint schedule premises by removing the structures therein within a period of one month from the date of the judgment. 9. Aggrieved by the same, the un-successful defendant carried the matter by way of appeal A.S.No.17 of 2003 on the file of the Senior Civil Judge, Pithapuram and appellate Court confirmed the decree and judgment of the first instance Court and dismissed the appeal with costs. 10. Aggrieved by the same, the Second Appeal No.1150 of 2004 has been preferred. On 27-10-2004 this Court made the following order: “Having regard to the following substantial question of law as to whether the lower Court is right in saying that Section 106 of the Transfer of Property Act was waired as no objection was taken and whether there can be estoppels against the statute. Admit. List this Second Appeal along with S.A.No.802 of 2004.” 11. Sri M. Lakshmana Sharma, learned counsel representing the appellants in both these appeals had taken this Court through the respective pleadings of the parties, the evidence available on record and the findings recorded by both the Courts below and would point out that in the light of the substantial questions of law on the strength of which the Second Appeals had been admitted, these Second Appeals are to be allowed. 12. On the contrary, Sri E.V.V.S. Ravi Kumar, learned counsel representing the respondents had pointed out to the concurrent findings recorded by both the Court of first instance and also the appellate Court and would maintain that in the light of the concurrent findings recorded by both the Courts below these Second Appeals are to be dismissed. 13. Heard the learned counsel. 14. The substantial questions of law on the strength of which these Second Appeals had been admitted already had been referred to above in S.A.No.802 of 2004. The parties hereinafter would be referred to as plaintiff and defendant as shown in O.S.No.25 of 1996 on the file of the Junior Civil Judge, Pithapuram. 15. The said suit as already aforesaid was filed praying for the relief of permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the tenancy rights over the premises covered by the plaint schedule property till the plaintiff is evicted under the due process of law. 16. The case of the plaintiff is that the father of the plaintiff purchased the building covered under the plaint schedule under a registered sale deed dt.17-8-79 for a valuable consideration of Rs.12,000/- with all its machinery including 5 H.P. electric motor PGG 32144 Coimbatore No.2 Huller with all its accessories mentioned detailedly in the sale deed. The father of the plaintiff died on 9-11-82. After the demise of his father, the family members settled their properties in their oral family settlement in 1982 itself. The plaintiff is in exclusive possession of “Sri Venugopala Rice Mill” situated near Saibaba Temple, Pithapuram, which was mentioned in the plaint schedule. The plaintiff is paying the electricity consumption charges as well as the licence fees and house tax to the Pithapuram Municipality. Originally, the plaint schedule mill premises belongs to one Sheik Farid Bibi, W/o.Noor Mohammad of Pithapuram. On 13-3-69 the said premises covered under the plaint schedule was leased to one Kota Vasantamala, W/o.Subbarao at the monthly rent of Rs.25/- under a registered lease deed. As per the lease deed, the lease period is ten years i.e., from 13-3-69 to 12-3-79. On 18-9-70 an exchange deed was executed in between Kota Vasanthamala, W/o.Subbarao and Bollam Subbarao, S/o.Seetayya and his son Sreerama Murthy. As per the recitals of the exchange deed dt.18- 9-70 the said Koka Vasanthamala exchanged ‘A’ schedule property in that deed i.e., Sri Venugopala Rice Mill with all its accessories to Bollam Subbarao and Sreerama Murthy and in turn she received ‘B’ schedule property in that exchange deed. On the same day i.e., 18-9-70 the said persons Bollam Subbarao and Sreerama Murthy obtained a lease deed from Shaik Farid Bibi, W/o.Noor Mohammad and as per the recitals of the said leas deed, the site occupied by Sri Venugopala Rice Mill was given on lease to the above said Subbarao and Sreerama Murthy on a monthly rent of Rs.30/- for a period of ten years from i.e., 18-9-70 to 17-9-80. On 12-9-73 Bolla Sreerama Murthy, S/o.Subbarao executed a registered sale deed in favour of his father Bollam Subbarao for his half share in Sri Venugopala Rice Mill after receiving an amount of Rs.4,000/- sale consideration from his father Subbarao. As such, by the date of 12-9-73 Bollam Subbarao become absolute owner of the said Rice Mill situated in the plaint schedule property. On 20-6-79 Bollam Subbarao obtained lease deed from Sheik Jani Saheb’s mother up to 17-9-85 and in turn the father of the plaintiff purchased “Sri Venugopala Rice Mill” including its machinery and Mangalore tiled shed covered in the plaint schedule on 17-8-79, after paying Rs.12,000/- sale consideration to the said Bollam Subbarao. After demise of the plaintiff’s father, in their family settlement, the plaintiff got the property and he is in exclusive possession and enjoyment of the rice mill situated in plaint schedule. Subsequently the rent was enhanced to Rs.50/- per month and to Rs.75/- per month. The said Sheik Farid Bibi died about 11 years back. Subsequently, the rent was enhanced to Rs.80/- per month and the same was received by the defendant and later the rent was enhanced to Rs.100/- per month and the same was received by the defendant. Subsequently, for the same premises covered in the plaint schedule, the rent was enhanced to Rs.120/- per month and the same was received by the defendant. About nine years back one Birusu Paddaraju demanded the rent from the plaintiff and it was represented by plaintiff that the rent was paid to the defendant. Then the said Subbarao (Paddaaju) represented that there was a suit regarding the title of the vacant site covered in the plaint schedule property and he advised that it is proper to deposit the rent into court. But, to plaintiff’s knowledge an appeal was preferred as A.S.13/90 in III Addl. District Court, Kakinada. During the said period the rent was received by the defendant at the rate of Rs.120/- per month from plaintiff. Even prior to the issuance of the notice dt.5-2-96, the defendant received rent for the month of February’96 at Rs.120/- p.m. When plaintiff insisted for receipt, defendant refused the same and claimed rent @ Rs.500/- and issued notice. As such plaintiff is continuing as tenant and paying the rent regularly to the defendant and plaintiff is not liable to be evicted from the premises covered in the plaint schedule. The averments made in notice dt.5-2-96 regarding the arrears of rent from January, 1985 is false. Since the plaintiff is not in arrear of rent and plaintiff is continuing in the said premises covered in the plaint schedule as statutory tenant, and the defendant is not having any right to terminate the plaintiff from the said premises, except under due process of law. The plaintiff gave a detailed notice on 5.3.96 under registered post. Even after that plaintiff requested to receive rent of Rs.120/- per month from March, 1996, but the defendant refused to receive the same. As such, the same will be sent to the defendant through money order. Since the defendant is refusing to receive the rent and he is searching ways and means to evict the plaintiff from the premises, the present suit is being filed for appropriate reliefs. To show his bonafidies, the plaintiff filed connected documents of proceedings of the Municipal Secretary-in-charge dt.5-4-69 for construction of the rice mill and also the letter of Inspector of Factories, Kakinada dt.18-5-70 and the proceedings of the Municipal Secretary-in- charge, Pithapuram dt.1-8-70 regarding the approval of the plan and the licence obtained by him right from 1974-75 to 1995-96 in the name of the plaintiff’s father and also house tax receipt for March’ 96 is also filed along with the plaint. 17. The defendant resisted the same by filing written statement denying several of the allegations. It was pleaded that the suit was instituted by the plaintiff against the defendant who is the lawful owner of the property. This defendant already filed O.S.No.30 of 1996 on the file of the Junior Civil Judge, Pithapuram for eviction and his mother from the plaint schedule property and the plaint filed O.S.No.30 of 1996 may be read as part and parcel of this written statement. The allegation that the property belongs to Shaik Farid Bibi is absolutely false. He plaintiff has no manner of right, title or interest over the property. The alleged leases referred to in the plaint are not true, valid and binding on this defendant. These defendant’s title in the property was upheld in O.S.No.86/87 and in the appeal A.S.13/90. The alleged lease deeds executed by Farid Bibi are illegal and invalid and they did not create any right, title or interest in favour of the plaintiff. This defendant had leased out the property to the plaintiff and his mother and they are not paying rents since January, 1985. Further the defendant submitted that there is no dispute over the ownership of the property and pending of the Second Appeal has nothing to do with the eviction of the plaintiff. 18. On the strength of these pleadings the following issues were settled: 1. Whether the plaintiff is a tenant under the defendant in respect of the plaint schedule property ? 2. Whether the defendant refused to receive the rent of plaint schedule property ? 3. Whether the plaintiff is entitled to permanent injunction as prayed for ? 4. To what relief ? 19. On behalf of the plaintiff PWs.1 to 3 were examined and Exs.A-1 to A-18 were marked. On behalf of the defendant DW-1 was examined and Exs.B-1 to B-8 were marked. The learned Judge while answering issue No.1 recorded reasons in detail and came to the conclusion that the plaintiff is a tenant of month to month of the defendant in relation to plaint schedule property. On appreciation of evidence available on record further findings had been recorded in paragraph Nos.10 and 11 while answering issue No.2 and came to the conclusion that there is no cogent evidence produced by the plaintiff that the defendant refused to see the plaintiff from the plaint schedule premises. While answering issue No.3 further findings had been recorded at paragraph Nos.12 to 15 and came to the conclusion that the plaintiff is not entitled to any of the reliefs. Further while answering issue No.4 specific finding had been recorded that the plaintiff is not having any valid lease from the defendant executed as was done in the case of his predecessors and in view of the conduct of the plaintiff in questioning about the title of the defendant and not paying rents etc., since said contentions are being untenable, the plaintiff is not entitled to any relief whatsoever. Accordingly, dismissed the suit. 20. Aggrieved by the same, the matter was carried out by way of appeal A.S.No.19 of 2003 on the file of the Senior Civil Judge, Pithapuram and the appellate Court referred to the written arguments of both the parties and further hearing both the parties made the following point for consideration in paragraph No.8: Whether there are grounds to interfere with the impugned Judgment and whether it suffers from any factual or legal infirmities ? 21. After recording reasons at paragraph Nos.9 and 10, the appellate Court came to the conclusion that the appeal is devoid of merits and accordingly dismissed the appeal. 22. Aggrieved by the same, the Second Appeal had been preferred. This Court had carefully gone through the oral and documentary evidence available on record and also the concurrent findings recorded by the Court of first instance and also the appellate Court. The Courts below appreciated the evidence of PWs.1 to 3 and DW-1 and also Exs.A-1 to A-18 and Exs.B-1 to B-8 in elaboration and recorded reasons. Even otherwise predominantly this is a question of fact, inasmuch as concurrent findings had been recorded by both the Courts below, this Court does not finding any substantial question of law, as such, the S.A.No.802 of 2004 deserves to be dismissed. 23. Accordingly, the same is hereby dismissed. 24. S.A.No.1150 of 2004 is filed by the unsuccessful defendants in both the appeal Bandi Saraswathi and Bandi Prabhakara Rao. The plaintiff Shaik Johney Saheb file the suit O.S.No.30 of 1996 aforesaid for recovery of arrears of rent for the purpose of plaint schedule property and for other appropriate reliefs. 25. It was averred in the plaint that the plaintiff is the owner of the plaint schedule property. The defendants are month to month tenants in possession of the plaint schedule property on a monthly rent of Rs.120/- per month. One Birasu Paddaraju filed a suit O.S.No.86 of 1987 on the file of the Subordinate Judge’s Court, Pithapuram claiming title to the plaint schedule property and the said suit was dismissed on 29-12-1989 and the said Pedda Raju filed appeal in A.S.No.13/90 on the file of the District Court, Kakinada and the said appeal was dismissed on 5-7-95. Thus, the title of the plaintiff was upheld by all the courts, and the plaintiff is the absolute owner of the property. The plaintiff got issued a notice dt.5-2-96 terminating the tenancy of the defendants by the end of February, 1996 and the defendants got issued a reply notice dt.5-3-96 with absolutely false allegations. The allegations in the reply notice are absolutely false. The plaintiff got issued a rejoinder notice dt.15-3-96 setting out the true and correct facts. The defendant failed to pay the rents payable to the plaintiff from June, 1985 to the end of January, 1996. Thus, the plaintiff is constrained to file a suit for arrears of rent and for possession of the plaint schedule property after evicting the defendants from the plaint schedule property. 26. The first defendant remained exprte and the second defendant filed written statement denying the allegations in the plaint. It is pleaded that the second defendant’s father purchased the property shown in the plaint schedule under registered sale deed dated 17-8-1979 for a valuable consideration of Rs.12,000/- with all machinery including 5 H.P. electric motor, P.G.G.32144, Koimbatore No.2 Hulla with all its accessories mentioned detailedly in the sale deed. The father of the 2nd defendant died on 9-11-82. After the demise of his father, the family members settled their properties in their oral family settlement in 1982 itself. The 2nd defendant is in exclusive possession of the “Sri Venugopala Rice Mill” situated near Saibaba Temple, Pithapuram, which was mentioned in the plaint schedule. The 2nd defendant is paying the electricity consumption charges as well as the licence fees and house tax to the Pithapuram Municipality. Originally, the plaint schedule mill premises belongs to one Sheik Farid Bibi, W/o.Noor Mohammad of Pithapuram. On 13-3-69 the said premises covered under the plaint schedule was leased to one Kota Vasantamala, W/o.Subbarao at the monthly rent of Rs.25/- under a registered lease deed. As per the lease deed, the lease period is ten years from 13-3-69 to 12-3-79. On 18-9-70 an exchange deed was executed in between Kota Vasanthamala, W/o.Subbarao and Bollam Subbarao, S/o.Seetayya and his son Sreerama Murthy. As per the recitals of the exchange deed dt.18-9-70 the said Koka Vasanthamala exchanged ‘A’ schedule property in that deed i.e., Sri Venugopala Rice Mill with all its accessories to Bollam Subbarao and Sreerama Murthy and in turn she received ‘B’ schedule property in that exchange deed. On the same day i.e., 18-9-70 the said persons Bollam Subbarao and Sreerama Murthy obtained a lease deed from Shaik Farid Bibi, W/o.Noor Mohammad and as per the recitals of the said leas deed, the site occupied by Sri Venugopala Rice Mill was given on lease to the above said Subbarao and Sreerama Murthy on a monthly rent of Rs.30/- for a period of ten years from 18-9-70 to 17-9-80. On 12-9-73 Bolla Sreerama Murthy, S/o.Subbarao executed a registered sale deed in favour of his father Bollam Subbarao for his half share in Sri Venugopala Rice Mill after receiving an amount of Rs.4,000/- sale consideration from his father Subbarao. As such, by the date of 12-9-73 Bollam Subbarao become absolute owner of the said Rice Mill situated in the plaint schedule property. On 20-6-79 Bollam Subbarao obtained lease deed from Sheik Jani Saheb’s mother up to 17-9-85 and in turn the father of the 2nd defendant purchased the “Sri Venugopala Rice Mill” including its machinery and Mangalore tiled shed covered in the plaint schedule on 17-8-79, after paying Rs.12,000/- sale consideration to the said Bollam Subbarao. After demise of the 2nd defendant’s father, in their family settlement, the 2nd defendant got the property and he is in exclusive possession and enjoyment of the rice mill situated in plaint schedule. Subsequently the rent was enhanced to Rs.50/- per month and Rs.75/- per month. The Sheik Farid Bibi died about 11 years back. Subsequently, the rent was enhanced to Rs.80/- per month and the same was received by the plaintiff and later the rent was enhanced to Rs.100/- per month and the same was received by the plaintiff. Subsequently for the same premises covered in the plaint schedule, the rent was enhanced to Rs.120/- per month and the same was received by the plaintiff herein. About nine years back one Birusu Paddaraju demanded the rent from the 2nd defendant and it was represented by this defendant that the rent was paid to the plaintiff herein. Then the said Subbarao (Paddaaju) represented that there was a suit regarding the title of the plaint schedule property and he advised that it is proper to deposit the rent into court. But, to this defendant’s knowledge an appeal was preferred as A.S.13/90 in III Addl. District Court, Kakinada. During the said period the rent was received by the plaintiff at the rate of Rs.120/- per month from this defendant. Even prior to the issuance of the notice dt.5-2-96, the plaintiff received rent for the month of February’96 at Rs.120/- p.m. When this defendant insisted for receipt, plaintiff refused the same and issued the notice. As such this defendant is continuing as tenant and paying the rent regularly to the plaintiff and this defendant is not liable to be evicted from the premises covered in the plaint schedule. This defendant is not disputing about the ownership of the plaint schedule property, but the said issue is before the High Court of judicature, Andhra Pradesh. Thus, the title of the plaintiff was not upheld by all the Courts as alleged in plaint para-4. The allegations in the reply notice issued by this defendant on 5-3-96 are true. Even in that notice, this defendant requested to receive the rent of Rs.120/- for March, 1996, but the plaintiff refused to receive the same. As such, the same was sent to the plaintiff through money order. Since the plaintiff is refusing to receive the rent and he is searching ways and means to evict this defendant from the premises covered under this plaint schedule. Hence, this defendant filed O.S.25/96 for permanent injunction against the plaintiff from interfering with the peaceful possession and enjoyment of the plaint schedule property, including the premises until this defendant is evicted under due process of law through proper legal proceedings, if any. The plaintiff is not entitled to recover the amount mentioned in the valuation para. The cause of action mentioned in the plaint is not correct. 27. The plaintiff got the suit amended as per the orders in I.A.No.1098 of 1999 and treated that during the pendency of the suit the defendants made several constructions and entered upon the same and these are the unauthorized constructions made towards western side mill are to be removed after evicting the office of the ‘Jai Bheem Dalitha Samkshema Sangham’, Pithapuram and to give vacant possession to the plaintiff and for costs. 28. Additional written statement was filed by the second defendant stating that the amendment of the plaint is not true and correct and denying that the defendants made several constructions are encroached upon and as such these alleged constructions made towards western side of mill are to be removed after evicting the office of Jai Bheema Dalitha Samkshema Sangham, Pithapuram and to give vacant possession to the plaintiff. The averments stated in para-5(a) are vague become it was averred as ‘encroached upon the same’. Since the said words are referred to the previous description of the encroachment. There is no previous description regarding the encroachment specified in para-5(a). In fact no part of the premises was encroached by the defendants either on the western side or any other side. “Jai Bheem Dalitha Samkshema Sangham” is painted subsequent to the suit. But that portion was in the occupation of the defendants even prior to the suit as tenant. Simply because the above said name is painted it cannot be said that