IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SIXTH DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU SECOND APPEAL NO. 1297 OF 2010 Between : Nanuram Kachawa ... APPELLANT A N D Smt T.Bhoolaxmi …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL NO. 1297 OF 2010 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 25.08.2010 in A.S. No.167 of 2008 on the file of the XI Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, whereunder and whereby, the decree and judgment dated 15.04.2008 in O.S.No.6530 of 2004 on the file of XIX Junior Civil Judge, City Civil Court, Hyderabad, were confirmed. 2. The appellant herein is the defendant and the respondent herein is the plaintiff, in the trial Court. For better appreciation of facts, the parties hereinafter referred to as they are arrayed before the trial Court. 3. The brief facts that are necessary for disposal of the second appeal may be stated as follows: The plaintiff filed O.S.No.6530 of 2004 for eviction of the defendant from the property bearing premises No.2-647/A/4, situated at Shivam Road, Nallakunta, Hyderabad (hereinafter referred to as ‘the schedule premises’). The defendant had taken the schedule premises, owned by the plaintiff, on a monthly rent of Rs.2,100/- and executed a rental deed dated 31.09.1998, for a period of 11 months. The defendant also executed an undertaking dated 31.12.1998 in favour of the plaintiff stating that he would vacate the premises on or before 31.12.2003. In the year 2002 also, the defendant executed a rental deed for 11 months. The Municipal Corporation of Hyderabad undertook road widening programme and the premises bearing No.18- 6-117 was getting affected under road widening and the plaintiff had to hand over 43.05 square yards from her property by which, the plaintiff would be losing both the mulgies, in which the plaintiff was running the Kirana shop. The Municipal Corporation of Hyderabad, also issued a notice dated 06.08.2003 to the plaintiff to surrender the above mentioned land for road widening. The plaintiff had to shift her shop into the schedule premises to eke out her livelihood and so, she had no other option except to evict the defendant from the suit schedule property at Shivam Road, Nallakunta for eking her livelihood. Therefore, she requested the defendant to vacate the suit schedule property as per her undertaking dated 31.12.1998. Even after expiry of the tenancy period, the defendant did not vacate the premises. Therefore, the plaintiff issued a legal notice dated 17.07.2004 to vacate the premises. The defendant instead of vacating the premises, filed a false case against the plaintiff vide O.S.No.4127 of 2004 with all false allegations for mandatory injunction to direct her to execute registered lease deed in respect of the schedule premises. The plaintiff is a widow and the defendant is harassing her, and that the defendant also made alterations in the schedule premises without the consent of the plaintiff and used the premises for business purpose. The defendant also broke open the walls between the shop and residential house without any permission from the plaintiff. The plaintiff requires the schedule premises for her business. Hence, the suit for eviction of the defendant. 4. The defendant filed written statement denying the allegations mentioned in the plaint and stating that he obtained the schedule premises and premises bearing No.2-2-647/A/4/3&4, by depositing Rs.1,61,000/- with a specific understanding that the possession of this defendant as tenant would not be disturbed except in case of any default in payment of monthly rent. The defendant was running a business under the name and style of ‘Balaji Ponamchand Mithai Bhandar’. The defendant made huge investment for furnishing the premises and also in the business. Initially the monthly rent was Rs.3000/- for the schedule premises and premises bearing No.2-2- 647/A/4/3&4 with an option for renewal for another period of 10 years in the first week of November, 2003. The plaintiff agreed to do so. The plaintiff suggested a term in respect of enhancement of rent by 20% after each period of three years. The defendant also agreed to the above proposal and the plaintiff prepared a draft lease agreement and showed to the defendant incorporating the term of enhancement of rent contrary to the agreed term. The plaintiff sought enhancement in the rent from 01.01.2004 only, but the defendant did not agree to the said term, the plaintiff developed evil attitude and also stopped receiving the rents sent by way of cheque and the plaintiff is trying to resile from the agreement to execute the lease deed as agreed. When the defendant gave notice dated 14.01.2004 to execute lease deed, the plaintiff refused to receive the same. There is no proposal of road widening as stated by the plaintiff and the allegation that the plaintiff is carrying on the Kirana business along with her sons is false. Ex.A.4- notice is illegal and improper and not binding on the defendant. Hence he prayed to dismiss the suit. 5. On the basis of above pleadings, the following issues have been settled by the trial court for trial: 1. Whether the plaintiff is entitled for recovery of vacant possession, by evicting the defendant from the suit schedule property? 2. To what relief ? 6. The trial Court clubbed O.S.No.6530 of 2004 filed by the plaintiff and O.S.No.4129 of 2004 filed by the defendant. 7. During trial, PWs-1 and 2 were examined and Ex.A.1 to A.5 were marked on behalf of the plaintiff/landlady, and on behalf of the defendant/tenant, DW.1 was examined and Exs.B1 to B15 were got marked. 8. The trial court after considering the evidence available on record came to the conclusion that the plaintiff terminated the tenancy of the defendant in accordance with law and she is entitled for recovery of vacant possession and held the issue in favour of the plaintiff against the defendant and decreed the suit by a common judgment dated 15.04.2008. On appeal the said decree and judgment were confirmed by the first appellate court vide the impugned Judgment and decree. Challenging the same, the present Second Appeal is filed. In so far as dismissing the suit O.S.No.4127 of 2004 as confirmed in appeal, the plaintiff therein (respondent herein) has not filed any appeal. That decree has become final. 9. Now the points for consideration are whether there are any substantial questions of law to admit the appeal and whether the concurrent findings of the both the Courts below are perverse ? 10. Learned counsel for the appellant –defendant contended that Ex.A.4-office copy of legal notice dated 17.07.2004, issued by the respondent – plaintiff to vacate the premises, is not in accordance with Section 106 of Transfer of Property Act, 1882 (for short ‘T.P.Act’) as the notice does not indicate the termination of tenancy and once Ex.A.4 is not valid, termination of tenancy as held by the Court below is incorrect, therefore, he contends that the findings arrived at, by the trial Court as confirmed by the Appellate Court, are perverse and prays admit the Second Appeal and set aside the Judgments of Courts below. 11. On the other hand, the learned counsel for the respondent – plaintiff contended that in Ex.A.4, it is clearly mentioned that the tenancy is determined and the appellant - defendant is directed to vacate the premises within 15 days from the date of receipt of the notice informing that on failure to vacate the premises proper necessary civil proceedings would be initiated against him and therefore, both the Courts below gave concurrent findings with regard to the determination of lease as required under Section 106 of T.P.Act and there are no grounds to interfere with the same and that there is no question of law much less substantial question of law involved in this second appeal so as to admit the same. 12. Existence of substantial question of law and not mere question of law is sine qua non for exercise of jurisdiction under Section 100 C.P.C. Concurrent findings of fact not to be interfered with, in Second Appeal. Interference justified in cases of non- consideration of relevant evidence, findings based on no evidence and result of surmises and conjectures. 13. The relationship of landlord and tenant between plaintiff and defendant is not in dispute. The only question to be decided in this appeal is whether the notice under Ex.A4 to vacate the premises is in accordance with 106 of the T.P.Act. 14. Section 106 of the T.P.Act, reads as under: “Duration of certain leases in absence of written contract or local usage:- 1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice. 2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. 3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. 4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property”. Sub Rule 1 lays down a rule of construction which is to be applied when there is no period agreed upon between the parties. In such cases the duration has to be determined by reference to the object or purpose for which, the tenancy is created. Sub Rule 2 provides how compulation is to be made, that is, from which date the period of six months or fifteen days, as the case may be, is to be computed. Sub-Section 3 validates those notices where the periods mentioned above, fall short, provided the suit or proceeding is filed after the expiry of the periods specified in Sub-Section 1. 15. The relevant portion of Ex.A.4, which is the point to be resolved the Second Appeal, reads as follows: “that you are hereby called upon to vacate the premises within 15 (fifteen) days from the date of receipt of this notice, lest my client shall be constrained to initiate appropriate civil and criminal proceedings against you for which you will be solely responsible for all the costs and consequences arising thereof.” 16. Learned counsel for the appellant - defendant contended that it does not satisfy the requirement under Section 106 of T.P. Act, as there is no determination of tenancy by virtue of the said notice and that under Clause (1) lease from month to month is terminable by giving 15 days’ notice and under Clause (2) the period of 15 days notice shall commence from the date of receipt of notice. 17. It is not in dispute that Ex.A.4 notice was received by the appellant - defendant. The appellant - defendant is called upon to vacate the premises within fifteen days from the date of receipt of the notice dated 17.07.2004 duly terminating the tenancy. The suit is filed after expiry of one month from the date of issuance of the notice. It is not the case of the appellant that the suit is filed within fifteen days of the notice received by him. 18. Ex.A.2 is the rental deed executed in January 2002, wherein the period of tenancy is only 11 months and the said lease period stood expired by December 2003. As per one of the terms and conditions of Ex.A.2, the landlady is required to give one month’s notice to the tenant to vacate the premises. The plea taken by the appellant - defendant before the trial Court is that the respondent - plaintiff agreed to execute a lease deed for a period of ten years and on failure to execute the lease deed she is not entitled to the relief of eviction. But, except taking a bald plea that the landlady is ready to execute the registered lease deed for ten years, there is no evidence adduced on behalf of the appellant - defendant to show that the respondent - plaintiff agreed to execute a lease deed for a period of ten years. In the absence of any evidence, it cannot be presumed that the respondent - plaintiff agreed to execute a lease deed for a period of ten years in favour of appellant/defendant. Therefore, the trial Court rightly held that Ex.A.4 notice is in accordance Section 106 of the T.P.Act. The findings on the aspect issuing quit notice and receipt of the same by defendant are proper and correct and based on the proper appreciation of the evidence available on record. None of the findings is shown to be perverse. Hence, there are no grounds to interfere with the concurrent findings of the both the Courts below. Hence, there are no substantial questions of law to admit the Second Appeal. 19. Learned counsel for the petitioner contended that for the last ten years the appellant - defendant is in possession of the property and so a reasonable time may be given to him for the purpose of securing alternate accommodation in and around the suit schedule premises to carry out the business. In view of the circumstances submitted by the learned counsel for the appellant – defendant and the facts and circumstances of the case, six (6) months’ time is granted to the appellant - defendant to vacate the premises. The appellant is directed to vacate the premises on or before 31.03.2011. It is also made clear that till then, the appellant - defendant is directed to pay the agreed rent and the arrears of rent, if any, to the respondent -plaintiff. If the appellant fails to pay the rent, he is liable for eviction in accordance with law. 20. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _______________ K.C.BHANU. J OCTOBER 26, 2010. YVL THE HON'BLE SRI JUSTICE K.C.BHANU SECOND APPEAL (SR) NO. 38467 OF 2010 DATED: 26.10.2010