THE HON'BLE SRI JUSTICE P.S.NARAYANA S.A.V.M.P.No.788/2010 and S.A.No.241 of 2010 10th June, 2010 Between :- Tunuguntla Enterprises, rep. by its partner T.Sreenivas and others .. Appellants and Lingamallu Lakshmi Prasad .. Respondent THE HON'BLE SRI JUSTICE P.S.NARAYANA S.A.V.M.P.No.788/2010 and S.A.No.241 of 2010 JUDGMENT:- S.A.V.M.P.No.788/2010 is filed to vacate the interim stay granted in S.A.M.P.No.577/2010 in S.A.No.241/2010 on 19-3-2010. At the stage of hearing of the vacate application, Sri K.Jayakumar, the learned Counsel representing the appellants and Sri Amancharla V.Gopal Rao, the learned Counsel representing the respondent made a request for final disposal of the Second Appeal itself and hence the Second Appeal was heard finally by this Court. 2. This Court on 19-3-2010 made the following Order:- “Having regard to the substantial questions of law arising as to (1) Whether a civil Court has got jurisdiction to entertain the suit under Section 106 of the Transfer of Property Act when there is a remedy available under the A.P. Buildings (Lease, Rent and Eviction Control) Act; (2) Whether a suit for ejectment is maintainable when the immovable property let out for non-residential purposes which comes within the definition of ‘building’ under Section 2 (iii) of the A.P. Buildings (Lease, Rent and Eviction Control) Act; and (3) Whether after the original lease period has been expired and the tenants are continuing a lease can be terminable by giving a statutory notice under Section 106 of the Transfer of Property Act; ADMIT. In S.A.M.P.No.577/2010 this Court made the following Order:- “Since it is represented that petitioners are already evicted, there shall be interim stay, if not evicted.” 3. Sri K.Jayakumar, the learned Counsel representing the appellants had taken this Court through the grounds raised in the memorandum of grounds of Second Appeal and also pointed out to the substantial questions of law on the strength of which the Second Appeal had been admitted and would maintain that in the facts and circumstances of the case both the Court of first instance and also the Appellate Court totally erred in coming to the conclusion that the present civil suit before the Civil Court is maintainable despite the fact that the remedy of the respondent – plaintiff is elsewhere i.e., to invoke the provisions of the A.P. Buildings (Lease, Rent and Eviction Control) Act. The learned Counsel also further pointed out that in the light of the evidence available on record, the findings recorded by the Courts below cannot be sustained. The learned Counsel ultimately would conclude that inasmuch as the Courts below had not appreciated the evidence available on record in proper perspective, the Second Appeal to be allowed. 4. Per contra, Sri Amancharla V.Gopal Rao, the learned Counsel representing the respondent-appellant would point out that the concurrent factual findings recorded by both the Court of first instance and also the Appellate Court normally cannot be disturbed in a Second Appeal especially in view of the limitations imposed on this Court in interfering with such concurrent factual findings under Section 100 of the Code of Civil Procedure. The learned Counsel also placed reliance on CHITTAJALLU SRINIVASA RAO v. NARMADA JOSHI[1]; MOHD.IBRAHIM v. MANAGING COMMITTEE OF MSAJID-E-KHURSHEED JAH[2]; and C.ALBERT MORRIS v. K.CHANDRSEKARAN AND OTHERS[3]. 5. Heard the Counsel. 6. The substantial questions of law on the strength on which the Second Appeal had been admitted already had been specified supra. The parties hereinafter for the purpose of convenience would be referred to as shown in O.S.No.1625/2006 on the file of the III- Additional Junior Civil Judge, Guntur. The said suit was filed by the plaintiff for ejectment of the defendants from plaint schedule property and for delivery of vacant possession and for arrears of rent as well. 7. The averments made in the plaint in brief are that the plaintiff is the absolute owner of the plaint schedule property and he leased out the schedule property as vacant site originally in favour of Tunuguntla Subbarao, father of defendants 2 and 3 and grand-father of 4th defendant, for the purpose of locating a timber depot by the defendants. Later, the father of the 4th defendant by name Tununtla Siva Krishnaiah continued as a tenant of the schedule property. The prior lease agreements entered into between the plaintiff and late Tunuguntla Subarao were expired, as such, the lease is an oral lease from month to month tenancy, terminable on either party by giving a statutory notice under the provisions of the Transfer of Property Act. 1st defendant firm represented by defendants 2 to 4 paid rents to the plaintiff for the schedule property up to 30-3-2001 and thereafter committed default in paying the rents. The agreed rent payable for the schedule property is Rs.1,200/- per month, payable by 5th of every succeeding calendar month. The plaintiff demanded the defendants several times to pay arrears of rent and also to vacate the schedule property, as the defendants have been committing acts of waste and nuisance in the schedule property. The plaintiff is not interested to continue the tenancy of the defendants and got issued a registered legal notice dt.5-6-2006 calling upon the defendants to vacate the schedule property by 30-6-2006 and also to pay arrears of rents and surrender the vacant possession of the schedule property in good condition to the plaintiff. The defendants get the registered notices and notices sent by courier are returned back and received the notices sent under certificate of posting. The defendants without vacating the schedule premises and paying arrears of rent, sent a reply without mentioning any date. The plaintiff is claiming arrears of rent for a period of 3 years commencing from 1-7-2003 to 30-6-2006 at the rate of Rs.1,200/- per month as the claim with regard to arrears of rent for the previous period is barred by limitation. The plaintiff is also reserving right to claim damages over usage and occupation of the schedule property by the defendants subsequent to the termination of lease. 8. The defendants had chosen to contest the suit. The 4th defendant filed written statement which was adopted by defendants 1 to 3. The case of the defendants is that originally the plaint schedule property was leased out to Tunuguntla Subbarao and sons. Previously, there was a terraced room on the northern portion of the schedule property constructed by the plaintiff. The original lease was in respect of the building and site but not vacant site only. For the purpose of storing timber, the said firm constructed a zink sheet shed on the back side of the terraced building on the southern side of the schedule site. The above firm was dissolved in the month of March,1986 and a new firm under the name and style of 1st defendant was constituted and the existing lease is taken over by the subsequent partnership firm. The rent for the schedule property has been increased gradually and for the last 10 years the agreed rent is only Rs.1,100/- for the vacant site and office room. There is a fresh lease in favour of 1st defendant herein after dissolution of earlier firm and the defendants have been continuing a stated that’s of the schedule property and paying the rent regularly. The plaintiff borrowed Rs.10,000/- from the mother of the 2nd defendant on 7-1-89 with an undertaking to pay interest at 18% per annum on the said amount and as on 7-1-2001, the total amount due from the plaintiff was Rs.72,869/- when the defendants demanded the plaintiff to discharge the above debt, the plaintiff asked the defendants to adjust the rents of the schedule property towards discharge of the said debt and allowed the defendants to continue the premises on the agreed rent at the rate of Rs.1,100/- per month. The defendants have been collecting interest at 18% per annum on the pronote debt and adjusting the rent payable on the schedule property towards discharge of the above debt and still there is a balance of Rs.60,952/- due to the defendants. According to the defendants, there are no arrears of rent payable to the plaintiff by them and this Court has no jurisdiction to decide this dispute and the plaintiff has to seek his remedy under the A.P. Buildings (Lease, Rent and Eviction Control) Act and the suit is liable to be dismissed. 9. In the light of the respective pleadings of the parties, the following issues were settled for trial:- 1) Whether the plaintiff is entitled for ejectment of the defendants from the schedule property and for taking delivery of vacant possession of the schedule property? 2) Whether the plaintiff is entitled to recover Rs.43,200/- being the arrears of rent at Rs.1,200/- per month from 1-7-2003 to 30-6-2006 from the defendants 1 to 4? 3) Whether this Court has no jurisdiction to entertain the suit and the plaintiff has to seek his remedy under the A.P. Buildings (Lease, Rent and Eviction Control) Act? 4) To what relief? 10. The Trial Court recorded the under-noted oral evidence:- P.W.1 :- Lingamallu Lakshmi Prasad D.W.1 :- Tunuguntla Joga Prasad D.W.2 :- Chakka Bangaru Setty D.W.3 :- Borugadda Venkata Satyanarayana The undernoted documents also had been marked as ‘A’ series and ‘B’ seires:- Ex.A.1:- Dt.12-11-99, Letter under Letter Head of Tunuguntla Enterprises sending Pay Orders towards rents for 6 months i.e, for the period from October, 1999 to March,2000 Ex.A.2 :- Dt.17-11-2000, Letter under Letter Head of Tunuguntla Enterprises sending Pay Orders towards rents for 6 months i.e, for the period from 1-4-2000 to 30-9-2000 Ex.A.3 :- Dt.13-6-2000, Letter under Letter Head of Tunuguntla Enterprises sending Pay Orders towards rents for 6 months i.e, for the period from October, 2000 to March,2001. Ex.A.4 :- Office copy of legalnc. Ex.A.5 :- Returned Legal notice sent by registered post. Ex.A.6 :- Returned legal notice sent by registered post Ex.A.7 :- Returned legal notice sent by registered post Ex.A.8 :- Returned legal notice sent by registered post. Ex.A.9 :- Legal notices sent by DTDC courier service with endorsement rejected. Ex.A.10 :- Legal notices sent by DTDC Courier service with endorsement rejected. Ex.A.11 :- Legal notices sent by DTDC Courier service with endorsement rejected. Ex.A.12:- Legal notices sent by DTDC Courier service with endorsement rejected. Ex.A.13 :- Certificate of Posting receipt Ex.A.14 :- Reply sent by the defendants through their Counsel. Ex.A.15 :- Certified copy of Judgment and Decree in O.S.No.635/90 on the file of III-Additional Munsif Magistrate, Guntur. Ex.A.16 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.17 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.18 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.19 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.20 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.21 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.22 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.23 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.24 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.25 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.26 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.27 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.28 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.29 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.30 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.31 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.32 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.33 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.34 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.35 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.36 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.37 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.38 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.39 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.40 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.41 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.A.42 :- Counter foil receipt passed by the plaintiff for the rents received from the defendants. Ex.B.1 :- Photographs with negatives showing the plaint schedule property. Ex.B.2 :- Photographs with negatives showing the plaint schedule property Ex.B.3 :- Photographs with negatives showing the plaint schedule property Ex.B.4 :- Photographs with negatives showing the plaint schedule property Ex.B.5 :- Statement of account on the letter head of Tunuguntla Enterprises. Ex.B.6 :- Dt.78-1-89, Pronote for Rs.10,000/-. 11. The Court of first instance while answering issues 1 to 3 recorded reasons at paras 6, 7, 8, 9, 10, 11, 12, 13,14, 15, 16, 17, 18, 19, 20 and ultimately while answering issue No.4 Decreed the suit evicting defendants 1 to 4 from the plaint schedule property and directing the defendants to deliver vacant possession of the schedule property by removing the structures made by them in the schedule property, to the plaintiff within two months from the date of the said Judgment and the defendants 1 to 4 are also directed to pay a sum of Rs.43,200/- being the arrears of rent for 3 years from 1-7-2003 to 30-6- 2006 together with interest at 6% per annum thereon from the date of filing of the suit till the date of realization and for costs of the suit. Aggrieved by the same, the unsuccessful defendants carried the matter by way of appeal A.S.No.127/2008 on the file of the Additional District & Sessions Judge-cum-Family Court, Guntur. The Appellate Court at para 11 formulated the following points for determination:- 1) Whether the subject matter of the suit is governed by Rent Control Act and if so, whether the impugned Judgment is illegal and liable to be set aside? 2) To what relief? The Appellate Court recorded reasons while answering point No.1 at paras 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and while answering point No.2 at para 23 came to the conclusion that the appeal to be dismissed with costs and granting appellants a months time to vacate the plaint schedule property from the date of Judgment. The learned Judge referred to CHITTAJALLU SRINIVASA RAO v. NARMADA JOSHI (2008 (1) ALD 111) and C.ALBERT MORRIS v. K.CHANDRASEKARAN AND OTHERS (2006 (1) SCC 228). Aggrieved by the same, the present Second Appeal had been preferred. 12. As already referred to supra, the substantial questions of law and on a careful appreciation of the oral and documentary evidence available on record, this Court is thoroughly satisfied that both the Court of first instance and also the Appellate Court appreciated the oral and documentary evidence available on record and arrived at the correct conclusion. Even otherwise, whether the lease had been granted in relation to vacant site and the super-structures had been raised by the defendants or whether the building already had been in existence and the same had been let-out, so as to attract the provisions of the A.P. Buildings (Lease, Rent and Eviction Control) Act, these aspects are predominantly being questions of fact and concurrent findings had been recorded by both the Court of first instance and also the Appellate Court on appreciation of evidence available on record, since such findings cannot be disturbed, the said findings are hereby confirmed and the Second Appeal shall stand dismissed with costs. However, in the facts and circumstances of the case the appellants are hereby granted three months time to vacate the plaint schedule property. ____________________ Justice P.S.Narayana 10th June, 2010 smr [1] 2008 (1) ALD 111 [2] 2003 (5) ALD 477 [3] (2006) I S.C.C., 228