THE HONOURABLE SRI JUSTICE A.GOPAL REDDY SA No.768/2009 JUDGMENT The defendant who is unsuccessful in challenging the eviction decree passed by the Principal Junior Civil Judge, Peddapuram dt. 31-10-2000 in OS No.120/1998 before the Senior Civil Judge, Peddapuram filed this second appeal challenging the judgment and decree passed in AS No.56/2000 dt. 6-7-2009. For the sake of convenience, the parties will be referred to as arrayed in the suit. The plaintiff filed the suit OS No.120/1998 pleading that he is the owner of the plaint schedule shop and it was let out to the defendant in the year 1983 for running cycle and fancy shop and the tenancy shall be for a period of four years from 1-9-1983 on a lumpsum amount of Rs.12000/- till July, 1987. The defendant continued to do the business in the petition schedule shop on a lumpsum amount of Rs.11,001/- from 2-7-1987 to 2-9-1990. Later, on a monthly rent of Rs.350/- from 2-7-1993 to 2-7-1994; Rs.400/- from 2-7-1994 to 1-3-1995; Rs.450/- from 2-7-1993 and Rs.500/- subsequently. The defendant stopped payment of monthly rent from February, 1995 to July, 1995. The plaintiff got issued a notice dt. 28-2-1998 covered under Ex.A-1 terminating the tenancy of the defendant and for vacating the premises. For which, the defendant gave a reply dt. 6-3-1998 covered under Ex.A-3 with false allegations. The defendant resisted the suit by filing a written statement. The defendant while denying the default of rent pleaded that when dispute arose, he tendered the payment of balance of Rs.1900/- by way of money order, the same was refused by the plaintiff. The defendant sent the same through a mediator and the same was not accepted. On refusal to receive rent, and when the plaintiff tried to interfere with the suit premises, the defendant filed OS No.99/1995 and the rent was being paid by bankers’ cheques. When the rent was paid for January, 1998 by way of banker’s cheque was refused by the plaintiff, the defendant gave notice and got filed OS No.23/98 for mandatory injunction, which was decreed on 11-8-1998. To the notice dt. 28-2-98 issued by the plaintiff, the defendant sent a reply on 6-3- 1998 with correct facts. There are no grounds for eviction. On the above pleadings, the trial court framed the following issues for trial: 1. Whether the plaintiff is entitled for eviction on the ground of default or so? 2. Whether the plaintiff is entitled to recover damages for use and occupation at Rs.1200/- per month from 2-5-1998 or not? 3. To what relief? On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A- 4 were got marked. On behalf of the defendant, D.Ws.1 to 3 were examined and Exs.B-1 to B-4 were marked. The trial court on consideration of the oral and documentary evidence concluded that the defendant (tenant) committed default in payment of rent, and therefore, the plaintiff is entitled to a decree of eviction and damages at Rs.650/- per month from 2-5-1998 onwards, on which date tenancy was terminated and accordingly decreed the suit. On appeal being filed, the lower appellate court confirmed the same holding that the plaintiff validly terminated the tenancy of the defendant by giving notice granting time and plaintiff has complied with the mandatory requirement under Sec.106 of the Transfer of Property Act and there are no grounds to resist the eviction pleaded by the landlord. Learned counsel for the appellant-defendant strenuously contended that in the absence of any averment that the tenancy was validly terminated under Sec. 106 of the Transfer of Property Act and framing an issue in that regard, ordering eviction by the trial court is erroneous. She further contended that the lower appellate court without there being any pleading to the said effect gave a finding that the tenancy has been validly terminated as per Sec. 106 of the Transfer of Property Act, the finding is contrary to the pleadings, and therefore the judgment and decree passed by the trial court as confirmed by the lower appellate court are liable to be set-aside. I do not find any merit in the contentions advanced by the learned counsel for the appellant-defendant for the reason the trial court while narrating the plaint pleadings recorded that the plaintiff vexed with the attitude of the defendant got issued a notice on 28-2-1998 properly terminating the tenancy and seeking eviction. For which, the defendant gave a reply with false allegations. Further there is no plea taken by the defendant that the notice issued is not in conformity with Sec. 106 of the Transfer of Property Act. The trial court rightly had not framed any issue in that regard. Even in the grounds of appeal, it was not pleaded that lease has not been validly terminated under Sec. 106 of the Transfer of Property Act, in spite of finding of the trial court that lease has validly terminated through notice dt. 28-2-1998 covered under Ex.A-1 nor any contention was advanced in that regard. Further, the trial court observed that the defendant in his reply covered under Ex.A-3 to the notice issued by the plaintiff covered under Ex.A-1 has not stated about sending the rent by way of money order. Non-mention of hand loan in Ex.A-3 falsifies the case of the defendant with regard to hand loan and ordered for eviction. But the lower appellate court concluded that notice issued by the plaintiff terminating the tenancy is valid and confirmed the finding of the trial court. The findings recorded by the courts below are based on appreciation of evidence and cogent reasons were assigned for coming to such conclusion, which do not suffer from any manifest illegality. Therefore, I do not find any question of law, much less substantial question of law arises for consideration in the second appeal. The second appeal is accordingly dismissed at the admission stage. However, the appellant-defendant (tenant) is granted three (3) months time for vacating and handing over vacant possession of the plaint schedule property to the respondent-plaintiff. ______________ A.GOPAL REDDY,J Dt.28-8-2009 kmr