IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTIETH DAY OF AUGUST TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.34 of 2010 Between: Pacha Peda Vengaiah and another .. Appellants AND Lanka Subbarao and another .. Respondents JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.105 of 2005 on the file of the V Additional District and Sessions Judge (Fast Track Court), Guntur, dated 15- 12-2009. The litigation commenced with the filing of O.S. No.688 of 2003 by the two plaintiffs against the two defendants claiming the 2nd plaintiff to be the owner of the suit schedule property, managed by the 1st plaintiff and the shop adjoining the 2nd plaintiff’s house being leased out to the defendants/brothers for running a fruit juice business with effect from 01-04-1999 at a monthly rent of Rs.1,000/-. The plaintiffs alleged that there was default in payment of rents from June, 2000 and use of the premises for purposes other than the agreed business and damage to the premises. A notice to quit was issued on 29-01- 2001, which was not complied with and the allegations in the reply notice about the period of tenancy being 25 years or the construction of the shop being at the expense of the defendants are false. Hence, the plaintiffs sued for evicting the defendants, arrears of rent of Rs.34,000/-, future damages and costs. The defendants resisted the suit contending that the 25 year old tenancy as per the agreement between the parties led to the construction of the shop at the expense of the defendants to a tune of Rs.25,000/- and the purpose of the lease was for doing business in sale of bujjies, punugus and sweets for an annual rent of Rs.2,500/- to be enhanced at 10% per annum. The cost of construction cannot be recovered by the defendants while handing over the shop back after 25 years. The defendants accordingly took possession of the site in March, 1999, constructed the shop and were running their business in the premises. The vexatious suit is the result of the desire of the plaintiffs to lease the premises to others for higher rent. The defendants denied the arrears of rent and hence, the suit be dismissed with costs. The trial Court framed issues about the entitlement of the plaintiffs for eviction, arrears of rent, damages, etc., and during trial, P.Ws.1 and 2 and D.Ws.1 to 4 were examined and Exs.A.1 to A.4 were marked. The trial Court rendered its judgment firstly noting that the jural relationship of lessee and lessor between the parties is not in dispute and the possession of the suit shop with the defendants is also not in dispute. The jurisdiction of civil Court is not questioned and the trial Court after referring to the oral and documentary evidence in detail, concluded from the admissions of the 2nd defendant as D.W.1 that the defendants did not pay any rent since June, 2000, they did not deposit the rents in any Court, they did not have any documentary evidence to show the construction of the shop at their expense and that they did not pay any advance. The trial Court concluded that Ex.A.1 quit notice issued by the plaintiffs was received by the defendants and the alleged payment of annual advance and absence of arrears of rent were also probablised to be false. Therefore, the trial Court holding the defendants to be liable to be evicted from the shop, directed the defendants to so vacate within three months from the date of the decree and to pay the arrears of rent at Rs.1,000/- per month till the date of eviction. In the appeal, the first appellate Court rendered the impugned judgment again referring to the rival pleadings, contentions and evidence and considering the truth and validity of the quit notice, the entitlement of the plaintiffs to eviction of the defendants and any grounds for interference with the findings of the trial Court. The first appellate Court also noted that the dispute centers round only the questions of the length of lease agreed, the existence of arrears of rent and the defendants making any constructions in the suit property. The first appellate Court referred to the absence of any lease in writing between the parties and the consequential application of Section 106 of the Transfer of Property Act as amended and consequently opined that the amended Section 106 applies to Ex.A.1 notice to quit, which is, hence, valid. The first appellate Court also found that there was no specific evidence about the period of lease being 25 years or the lease being one from year to year. It also found that the evidence of D.W.1, the 2nd defendant, is devoid of any material particulars in proof of the alleged construction of the shop at their expense. D.Ws.2 to 4 were not relied on by the first appellate Court also like the trial Court for the reasons stated in the judgments and the consequent conclusions of the first appellate Court are that the defendants cannot continue in the property in view of the validity of the quit notice and absence of proof of any agreed period of lease, while the future mesne profits should have been left to be determined in separate proceedings under Order XX Rule 12 of the Code of Civil Procedure, and damages for use and occupation at Rs.1,000/- per month were awarded for the period from 01-06-2000 to 31-03-2003, the date of the suit. The first appellate Court granted one more month’s time from the date of the judgment to defendants 1 and 2 to vacate the premises. The defendants seek to challenge the said judgment and decree alleging that substantial questions of law arise in the second appeal about the default of the defendants not being proved beyond reasonable doubt and the plaintiffs not discharging the burden of proof placed on them. The defendants also contended that the appreciation of oral and documentary evidence was unjustified. This Court admitted the second appeal only on the grounds of default of the defendants not being proved beyond reasonable doubt and the plaintiffs not discharging the burden of proof concerning the non-payment of rents. Heard Kum. K. Kalpana, learned counsel representing Sri G.L. Nageswara Rao, learned counsel for the appellants and Sri P. Vijaya Kiran, learned counsel for the respondents/plaintiffs. The consideration herein is confined to the two questions on which the second appeal is admitted. The 2nd defendant as D.W.1 even in his chief-examination affidavit was not specific about the manner in which the rents were paid since after May, 2000 and the very commencement of his cross-examination resulted in an admission about there being arrears of rent since June, 2000, which were not deposited in any Court up to the date of his evidence. While admitting ignorance about the ownership of the premises in public records and the absence of any documentary evidence about the construction of the shop at their expense, the 2nd defendant further stated about the schedule shop being in the compound of the house of the plaintiffs. He also admitted absence of any payment of any advance. D.Ws.2 to 4 were examined only to speak about the construction of the shop allegedly at the expense of the defendants, but not to testify on any other aspect nor did they refer to the payment of rent during the period in question. As against such evidence, the evidence of the 1st plaintiff as P.W.1 was sought to be corroborated by the evidence of P.W.2 who claims personal knowledge of the construction of the shop at the expense of the plaintiffs. Ex.A.4 is an old diary produced by P.W.1 in support of his claims of such expense and while denying the allegations of the defendants about the quantum of rent, the period of lease, etc., the 1st plaintiff positively stated about the rent being due from the defendants since June, 2000 and his cross- examination was not directed towards denying the period for which the rents were due. The issuance and receipt of Ex.A.1 notice to quit are not in dispute and on such evidence on record, there could have been no other conclusion except that the defendants did not pay any rent to the plaintiffs from June, 2000 up to the suit or even up to the evidence of D.W.1 irrespective of the controversy about the quantum of rent and the period of lease. If so, Ex.A.1 notice to quit under Section 106 of the Transfer of Property Act puts a formal seal on the determination of the lease due to forfeiture or on the expiration of the notice to determine the lease or to quit. It is incomprehensible as to how on the admissions of D.W.1, it can still be raised that the default was not probablised beyond reasonable doubt or that the plaintiffs failed to prove the arrears of rent in discharge of the burden of proof placed on them by law. Therefore, no questions of law, leave alone substantial questions arise for consideration and determination in the second appeal and the appellants have to fail. Kum. K. Kalpana, learned counsel made a strenuous effort to convince the Court about the probability of the shop being constructed at the expense of the defendants who were persuaded to spend about Rs.25,000/- in view of the length of lease for 25 years and the quantum of rent at Rs.2,500/- per annum. But the conclusions of fact on appreciation of oral evidence on record by the trial Court, which had the benefit of observing the demeanour of the witnesses, which were confirmed by the first appellate Court on re-appreciation of the entire evidence, are not open to be tampered with in the second appeal by the High Court. The appreciation by the Courts below is not liable to be considered as perverse or unsound and if so, the request for reassessment of the entire questions in issue cannot be sustained. However, the property in question is a small shop covered by asbestos sheets and iron sheets with a small veranda in which the defendants are carrying on the business under the name and style of Vengamamba Tiffin and Tea Centre since 1999. The 1st defendant said to be aged 45 years and the 2nd defendant said to be aged 50 years by the time of the suit in 2003 were obviously eking out their livelihood from the said petty business. Kum. Kalpana, learned counsel requested for grant of six months time to vacate in the event of the Court not agreeing with her submissions, in order to enable the defendants to secure a suitable alternative accommodation. Sri P. Vijaya Kiran, learned counsel for the respondents/plaintiff desired that grant of time may be confined to reasonable limits without depriving the plaintiffs of their own property. Though the litigation has prolonged for about eight years, keeping in view the overall facts and circumstances, grant of six months time may be reasonable and just. In the result, the second appeal fails and is dismissed without costs and the appellants/defendants are granted further time of six months from today to vacate and deliver vacant possession of the suit schedule premises to the plaintiffs. _____________________ G. BHAVANI PRASAD, J Date: 30-08-2011 Svv