*HON'BLE SRI JUSTICE G. BHAVANI PRASAD +S.A. No.1273 of 2004 and S.A.M.P. No.896 of 2010 % 29/11/2011 # Vippanapally Radha and another ..... APPELLANTS/ PETITIONERS Vs. $ Brindavan Educational Society, represented by its President, Brahmanawada locality, Karimnagar ..... RESPONDENT/ RESPONDENT ! COUNSEL FOR THE APPELLANTS: Sri S.A. Chari ^ COUNSEL FOR THE RESPONDENTS: Sri N. Subba Reddy < Gist : Head Note: ? CITATIONS: 1. 2002 AIHC 4950 2. 2008(1) Supreme 544 3. (2005) 7 SCC 791 4. AIR 1973 SC 2391 5. 1996 AIHC 4380 6. AIR 1990 Madras 76 7. AIR 1969 SC 73 8. AIR 1979 Gauhati 10 9. AIR 1971 SC 2018 10. AIR 1977 SC 2262 11. AIR 1965 SC 1812 12. AIR 1976 SC 2169 13. 2004 (5) ALT 542 14. AIR 1937 PC 233 15. AIR 2000 Kerala 60 16. 1979 The Punjab Law Reporter 527 17. 1989 (1) APLJ 345 18. AIR 1963 AP 20 19. AIR 1961 SC 1669 20. AIR 1958 AP 451 21. AIR 2001 SC 416 22. 2007 (7) Supreme 280 23. 2003 (6) ALD 796 24. AIR 2005 SC 3330 25. AIR 2006 SC 3028 26. AIR 2007 SC 1546 27. (2007) 8 SCC 751 28. AIR 1996 SC 2592 29. (2008) 12 SCC 353 30. 2010 (6) Supreme 321 31. AIR 2001 SC 1696 32. AIR 2000 SC 3523 33. 2000 (1) ALD 303 34. AIR 2001 AP 20 35. 1998 (TLS) 116533 36. AIR 1955 Calcutta 601 37. AIR 2001 SC 2569 COMMON JUDGMENT: Aggrieved by the judgment and decree in A.S. No.12 of 2003 on the file of the III Additional District Judge’s Court at Karimnagar, dated 14-07-2004, by which the judgment and decree in O.S. No.121 of 1998 on the file of the Principal Junior Civil Judge’s Court, Karimnagar dated 08-01-2003 were confirmed in respect of recovery of possession and set aside in respect of perpetual injunction, thus partly allowing and partly dismissing the appeal without costs, the defendants in the suit preferred the present second appeal. S.A.M.P. No.896 of 2010 is a petition to receive copies of bye-laws of the respondent society and registered gift deed dated 05-10-2004 as additional evidence marking them as Exs.B.6 and B.7. 2. The parties are referred to herein as they are arrayed before the trial Court. 3. The plaintiff filed the suit originally for a perpetual injunction restraining the defendants, etc., from interfering with the peaceful possession and enjoyment of the plaintiff over the suit leasehold premises in municipal door No.1-5-165 old / 1-5-191 new, near Jubilee Kaman, Karimnagar unless otherwise evicted by due process of law. The relief was later amended to evict defendants 1 and 2 from the suit premises delivering the same to the possession of the plaintiff. The plaintiff registered society claimed to be represented by its President M. Satyanarayana and to be the lessee of the suit premises running Brindavan English Academy in the premises. Its President M. Satyanarayana alias Satyam is the sister’s son of the 1st defendant who is the wife of the 2nd defendant. The oral lease in July, 1993 was for a monthly rent of Rs.2,000/- to be enhanced by Rs.100/- in every succeeding academic year. The registered school is running continuously with reputation and goodwill. The property tax was requested by the defendants to be paid by the President of the plaintiff whenever demanded by the municipal council, Karimnagar, to be adjusted in monthly rents and they also collected a deposit of Rs.20,000/- agreeing to pay interest at 24 per cent per annum to be adjusted in the monthly rents. Additional amounts were collected from time to time as deposit to a tune of Rs.1,38,630/- with a similar stipulation to adjust interest at 24 per cent per annum thereon in the monthly rents. The defendants furnished an account sheet in December, 1996 in the own hand of the 2nd defendant admitting the balance of Rs.1,01,000/- towards deposit after adjustment of interest up to 30-11-1996. The President of the plaintiff found that interest was charged illegally on monthly rents without any oral or written agreement in the account to a tune of Rs.22,986/- while not accounting for interest on Rs.20,000/-, the original deposit, and not adjusting Rs.15,852/- paid by the plaintiff towards property tax. When the defendants were questioned to furnish a correct account, they attempted to dispossess the plaintiff and its staff and students in March, 1998 with the help of unlawful elements, which attempts were resisted. The plaintiff sent monthly rent at the rate of Rs.2,400/- per month from January, 1998 to March, 1998 through an account payee demand draft No.0205779, dated 15-04- 1998 by registered post, which was returned as refused on 17-04-1998. The plaintiff by way of caution sent an additional copy and copy of the demand draft by registered post to the office of the 2nd defendant, for which a reply with false averments was given. The plaintiff gave a reply notice against the threat for eviction and the defendants were intimidating with the active support of the police. Hence, the suit originally for a permanent injunction. The plaintiff alleged that in wilful disobedience and breach of the injunction granted on 17-06-1998 in I.A. No.557 of 1998, defendants 1 and 2 forcibly occupied the suit premises on 21-06-1998 and hence, the amendment of the plaint seeking the relief of eviction and delivery of possession. 4. The defendants resisted the suit contending that the lease agreement was cancelled long back and the defendants were in exclusive possession and enjoyment of the house. The defendants demanded to vacate and deliver possession in March, 1998, but at the request of the plaintiff, the police and the caste elders requested the defendants to wait till completion of the examinations of the students till 23-04-1998. The plaintiff, who has to hand over possession on 24-04-1998, did not do so in spite of requests and on 10-05- 1998, the police and the caste elders personally present, got the plaintiff vacated from the suit house. The plaintiff and his goondas attacked the defendants and other inmates of the house causing injuries to the defendants and their daughter-in-law who were referred to the civil hospital, Karimnagar by the police on 11-05-1998. A panchayat was held before Padmasali caste elders, V. Sambaiah, Lakshminarayana, Ravinder Rao and Vengaladas Narayana, Sarpanch of Bommakal. The plaintiff also received Rs.1,00,000/- demand draft under a receipt and took away the furniture from the suit house. The defendants are, thus, in possession and enjoyment since prior to the filing of the suit and the plaintiff took another house on lease and is running a school therein since June, 1998. The suit has no cause of action and the President of the society took Rs.1,00,904/- on 16-06-1998 through a demand draft and promised to withdraw the case before caste and village elders. There is no lease between the parties and the President of the society asked for huge amount to not press the suit through a memo, for which the defendants refused. Then the plaintiff got the plaint amended and the alleged forcible occupation on 21-06-1998 is false, the defendants having been in possession since 11-05-1998. The matter was discussed in I.A. No.458 of 1999 by the Court, which modified its orders and any question of eviction or delivery of possession does not arise. Hence, the defendants requested for dismissal of the suit with heavy costs. 5. On such pleadings, the following issues were settled for trial. (1) Whether the plaintiff is entitled for a perpetual injunction as prayed for ? (2) To what relief ? Additional issue No.1 framed as per orders in I.A. No.2344 of 2002: Whether the plaintiff is entitled for recovery of possession of suit premises as prayed for ? 6. During the trial, P.Ws.1 to 7 and D.W.1 to 3 were examined and Exs.A.1 to A.16 and B.1 to B.5 were marked. 7. The trial Court rendered its judgment noting the admitted ownership of the premises with defendants 1 and 2 and the admitted leasing out of the premises to the plaintiff. It noted that D.W.1 admitted that he agreed for running of a school by Satyanarayana in the premises and the premises were, hence, considered to have been let out for running a school by the society under the oral tenancy without any fixed period of lease. While the relationship of landlord and tenant was hence noted to be continued, the defendants were noted to have not issued any notice terminating the tenancy and to have not obtained any document evidencing the alleged voluntary delivery of possession by the plaintiff. The evidence of D.W.1 about the Circle Inspector of Police first asking him to wait till completion of academic year on 23-04-1998 and again advising him on 07-05-1998 to occupy the premises, on which the plaintiff’s furniture was removed by keeping it in the compound and the defendants occupied the rooms, which went on till 10-05-1998, was noted to indicate that taking advantage of the influence of the police, the defendants occupied the suit premises forcibly from the hands of the plaintiff. While the plaintiff continued to run the school at Brahminwada in another premises since June, 1998, the evidence of D.W.1 about the Correspondent of the school shifting the furniture to the premises at Brahminwada after the panchayat on 02-06-1998 at I Town police station, Karimnagar and D.W.1 issuing a bankers cheque for Rs.1,00,904/- on 16-06- 1998 delivered under Ex.B.1 receipt by the plaintiff, was noted to be contrary to the alleged earlier vacation of the premises between 7th and 10th of May, 1998. The trial Court observed that the plaintiff has every right to be in possession of the premises as a continuing tenant till legally evicted by the defendants and the correspondence between the parties was noted to not contain any clear notice to quit as per the Transfer of Property Act. The version of D.W.1 about 5 or 6 panchayats by caste elders between 17th and 30th May, 1998, before which the demand draft sent by him for Rs.1,00,000/- on 14-05-1998 was returned by Satyanarayana, though it was sent as per the panchayat on 02-06-1998, was noted to be discrepant as the award of elders allegedly executed on 02-06-1998 was not filed into Court and in the absence of the document showing any award passed once or twice, the contention about the panchayat was not accepted. The evidence of D.W.2 about the attack by Satyanarayana and 20 others on 11-05-1998 injuring D.W.1, D.W.3 and another woman at the suit premises was not acted upon, as the evidence of D.W.2 also showed the furniture of the school being there in the premises on 10-05-1998 showing the possession of the plaintiff by the date of the suit. The evidence of D.W.3, the daughter-in-law of D.W.1, was referred to as admitting presence of no witness contrary to D.W.2, the absence of any injury certificates or other evidence and the absence of any case against Satyanaryana and others on the complaint by the injured. If the plaintiff had voluntarily vacated the suit premises earlier, the alleged quarrel could not have taken place and the forcible occupation in June, 1998 was noted to be after the order of injunction. Exs.A.8 to A.11 were noted to be showing the absence of any amicable settlement regarding the due amounts between the parties and the evidence of P.Ws.2 to 7 was considered to be corroborating the claim of P.W.1 Satyanarayana and concluding that the suit premises was occupied by the defendants by force during the subsistence of the tenancy making the defendants liable to redeliver the possession of the premises to the plaintiff, the trial Court, hence, held that the plaintiff is entitled for recovery of possession and also for a permanent injunction. 8. The decree of the suit with costs was the subject of A.S. No.12 of 2003 leading to the impugned judgment, wherein the first appellate Court referred to the rival pleadings leading to trial and decree of the suit and noted that one V. Srinivas is stated to represent the plaintiff’s society as its President in the place of M. Satyam alias Methuku Satyanarayana who instituted the suit claiming Srinivas to have become the President of the society. The plea by the defendants/appellants about the school being run elsewhere since six years, the criminal case filed by Satyanarayana ending in acquittal and the impermissibility of putting the tenant into possession, was noted as well as the contrary contentions for the plaintiff and the point considered was whether the decree and judgment of the trial Court require any interference by the appellate Court. After noting the admitted facts, the appellate Court noted the lease to have been admitted and any eviction to be only under due process of law. D.W.1, a retired Deputy Executive Engineer, was noted to have evicted the plaintiff with the assistance of police as proved by P.Ws.1 to 7, while the defendants failed to establish any voluntary delivery of possession by the plaintiff. Noting that there will be no protection for the tenants if landlords are permitted to evict them by taking the law into their hands, the appellate Court also referred to the absence of any receipt from the plaintiff about vacating the premises and not pressing the suit. The alleged incident on 11-05-1998 was disbelieved and it was opined that under Section 144 of the Code of Civil Procedure, even in a suit for simple injunction, if the person in possession was evicted during the pendency of the suit, the Court can direct restoration of possession. While the question of grant of any permanent injunction was considered not to arise, as the plaintiff is not in possession, the decree and judgment in respect of recovery of possession were confirmed. 9. The defendants claim in the second appeal that it was a continuous process by which the defendants came into possession of the suit house from 07-05-1998 to 10-05-1998 indicating consent of the plaintiff to vacate the house. The receipt of the demand draft for Rs.1,00,904/- on 16-06-1998 indicated the plaintiff reconciling to his vacating the suit house and the petition for alleged breach of injunction was filed on 11-09-1998 after about two and half months after the alleged occupation on 21-06-1998. The plaintiff was running the school in a different building since 10-05-1998 itself and hence, the defendants claimed that substantial questions of law arise about the necessity of any notice under the Transfer of Property Act when the plaintiff vacated the house, necessity of obtaining anything in writing from the plaintiff about vacating the house and the misreading of the evidence on record about forcible occupation by the defendants. 10. As per the leave granted in S.A.M.P. No.2215 of 2009 on 28-10-2009, additional grounds of appeal were received in which the defendants contended that further substantial questions of law arise about the maintainability of the suit without proper authority under the Andhra Pradesh (Telangana Area) Public Societies Registration Act 1350 F (for short “the Act”), the fraud played by the person filing the suit in a representative capacity without any authority, the existence of landlord and tenant relationship on the date of the suit, the provisions of Section 106 of the Transfer of Property Act being attracted, wrongful and unlawful possession of the plaintiff on the date of the suit, the delivery of possession under Section 108 (q) of Transfer of Property Act, any entitlement to the relief of restoration of possession after the plaintiff was out of possession without any right including a possessory right and grant of restoration of possession against the principles laid down by the Apex Court and the High Courts. Any oral lease beyond one year was claimed to be hit by Section 107 of the Transfer of Property Act making any notice under Section 106 thereof unnecessary. The tenancy was not perpetual, but was liable to be terminated when demanded. The discretionary reliefs under the Specific Relief Act should not have been granted to Satyanarayana who belied the trust of the aged defendants who had no other place to reside. Satyanarayana did not produce any evidence in support of any authority to file the suit and hence, the defendants desire the suit to fail. 11. In S.A.M.P. No.896 of 2010, the defendants claimed that they were able to obtain the certified copy of bye-laws of the plaintiff society from the Registrar of Societies which will show the institution of the suit to be not in accordance with the provisions of the Societies Registration Act and the fraud played by Satyanarayana who had no authority or locus standi to file the suit. The registered gift deed dated 05-10-2004 executed by the 1st defendant in favour of her grand son was also requested to be received as additional evidence to mark them as Exs.B.6 and B.7. 12. The second appeal was admitted on 11-07-2005 on the following substantial questions of law. 1. Whether in the facts and circumstances of the case, the Courts below are right in holding that the quit notice is necessary when it was a specific case of the defendants that the plaintiff voluntarily vacated the premises after having received an amount of Rs.1,00,904/- ? and 2. Whether the appreciation of evidence is, in any manner, perverse ? 13. In view of the leave granted to receive the additional grounds of appeal, the following substantial questions of law also arise for consideration and determination herein. 1. Whether the person filing the suit on behalf of the plaintiff had no authority or locus standi to file the suit and the suit as framed is not maintainable and whether the question can be raised and decided in the second appeal ? 2. Whether the possession of the plaintiff on the date of the suit was wrongful and unlawful and whether the plaintiff has any right to have restoration of possession ? 3. To what relief ? 14. Heard Sri S.A. Chari, learned counsel for the appellants and Sri N. Subba Reddy, learned senior counsel for the respondent. The learned counsel referred to various precedents, which will be contextually referred to in due course. 15. The points that arise for consideration in this second appeal are about receiving the documents tendered as additional evidence in S.A.M.P. No.896 of 2010 and about the substantial questions of law originally formulated and now formulated. 16. In so far as the copy of the registered gift settlement deed dated 05- 10-2004 by the 1st appellant in favour of her grand son is concerned, the said document subsequent to the suit and the first appeal, was sought to be introduced into evidence probably in proof of the recital therein about the delivery of possession of the property by the donor to the donee under the document. The copy of bye-laws of the plaintiff society issued by the Registrar of Societies was requested to be admitted into evidence with reference to the alleged lack of authority and locus standi for M. Satyam alias M. Satyanarayana to file the suit on behalf of the plaintiff. While the factual and legal impact of the two documents on the questions in issue have to be considered along with the other evidence on record, as the copy of bye-laws was subsequently obtained and as the gift settlement deed was subsequently executed and as the documents relate to running and governance of the plaintiff society and the possession of the subject property respectively, they cannot be considered irrelevant. As any request under Order XLI Rule 27 of the Code of Civil Procedure will be considered with a view to rendering justice on all available evidence and not shutting out the same, if there is some sufficient cause for non-production of the documents earlier, admitting the documents with a view to subserve the ends of justice, which is a substantial cause, will be in order and hence, the copy of bye-laws be received in evidence as Ex.B.6 and the copy of registered gift settlement deed dated 05-10-2004 be received as Ex.B.7 and be admitted in evidence accordingly. In admitting such evidence, the principle laid down in Koppula Koteshwara Rao v. Dr. Koppula Hemantha Rao by a learned Judge of this Court can be taken aid of and the learned Judge held that receiving additional evidence in a second appeal depends upon the facts and circumstances of a particular given case. 17. Coming to the evidence of the parties before the trial Court, Methuku Satyanarayana-P.W.1 claimed to be the President of the plaintiff society running the school in the subject premises owned by the defendants under an oral lease for a monthly rent of Rs.2,000/- since July, 1993. He reiterated the allegations in the plaint and claimed the additional deposits collected from him from time to time to be a tune of Rs.1,40,000/- excluding the original deposit of Rs.20,000/- and referred to Ex.A.1 statement of account in the handwriting of the 2nd defendant furnished in December, 1996. He claimed the statement of account to be not showing the deposits in full and interest of Rs.22,000/- and odd to be charged on rents up to 30-11-1996, no interest being calculated on the original deposit of Rs.20,000/- and not showing payment of property tax of about Rs.15,000/-. He stated that instead of showing the correct accounts as requested, the defendants tried to dispossess the plaintiff in March, 1998, which was resisted and he claimed to have sent rents from January to March, 1988 at Rs.2,400/- per month through account payee demand draft dated 15-04- 1988, which was refused as seen from Exs.A.2 and A.3 returned postal covers. He claimed that Ex.A.4 is the copy of the letter addressed to the defendants and in Ex.A.4, the account sheet prepared by the 2nd defendant was not claimed to be incorrect, though a reference was made to the adjustability of Rs.1,13,200/- towards deposits and amounts paid towards property tax. In Ex.A.8 legal notice issued by the defendants on 21-04-1998, it was stated that a panchayat was held before caste persons and later before the police and that P.W.1, who was addressed as the President of the plaintiff society, promised to vacate the premises on or before 23-04-1998. The defendants claimed to be enclosing a copy of demand draft for Rs.1,00,000/- and promised to clear all accounts at the time of vacating. Ex.A.9 reply notice, dated 21-04-1998 from the defendants is to a similar effect, in which the allegation in Ex.A.4 about Rs.1,13,200/- lying in deposit with the defendants is admitted, which was promised to be returned at the time of vacating the premises. Ex.A.10 is another reply notice from the defendants dated 23-04-1998 with similar allegations and Ex.A.11 dated 23-04-1998 is also similar. In all the communications, the defendants addressed P.W.1 as the President of the plaintiff society. P.W.1 further produced Exs.A.12 to A.14 property tax receipts and Ex.A.15 is the reply to the notices from the defendants on 30-04-1998, in which the plaintiff represented by P.W.1 denied any panchayat before the caste elders or involvement of Sri B. Srinivas, advocate or any request by the Sub- Inspector of Police to wait till completion of school examinations by 23-04- 1998. The plaintiff alleged attempt at dispossession by force and stated that no demand draft or a copy of it were received by it and that interest and property tax payments were not properly accounted for in the rents. Another sum of Rs.2,00,000/- was stated to be due towards the price of the car and the defendants were demanded to return the entire amount due with interest at 24 per cent per annum to P.W.1 who is the nephew of the defendants. The plaintiff also warned against forcible dispossession, in Ex.A.15. 18. P.W.1 claimed that after the suit and a temporary injunction in favour of the plaintiff dated 17-06-1998 after appearance of the defendants through a counsel, the defendants forcibly occupied the premises on 21-06-1998. P.W.1 admitted that he did not file any document showing that he is the President of the