Jai Laxmi Narasimha Restaurant and Bar v. V. Navnitha

appeals. For convenience, the parties are referred to as arrayed in O.S.No.666 of 2015.

CCCA.No.215 of 2019:

4. The appellants herein are defendants 4 and 5 in O.S.No.666 of 2015. The suit was filed praying to grant decree of declaration that plaintiffs and defendants 4 to 22 are the absolute owners of the suit 'A' and 'B' schedule properties; to direct the defendant Nos. 1 to 3 to deliver peaceful and vacant possession of the suit 'A' and 'B' schedule properties to the plaintiffs by evicting the defendants 1 to 3 and to grant consequential injunction restraining the defendants 1 to 3 or persons claiming through them from interfering with the ownership and possession.

5. Plaintiff No.1 is the wife of Late M. Pratap Reddy. Plaintiff Nos.2 and 3 are their children. Defendant Nos.4 to 6, 12 and 13 are the brothers of late M.Pratap Reddy. Late M.Pratap Reddy and defendants 4 to 6, 12 and 13 are the sons of late M.Ram Narsimha Reddy; Defendants 14 to 17 are children of late M.Rama Krishna Reddy; Defendants 18 to 22 are wife and children of late M.Venkat Reddy; and Defendants 23 to 26 are wife and children of late M.Bheema Reddy. According to plaintiffs late M Ram Narsimha Reddy was the protected tenant during his lifetime on a land to an extent of Ac.3.04 guntas

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spread over Survey Nos.82, 83, 84 and 124 of Gudimalkapur Village, Asifnagar Mandal, Hyderabad.

6. After demise of late M. Ram Narsimha Reddy, the Tahsildar, Golconda Mandal granted succession certificate in favour of legal heirs vide order dated 01.02.1982 under Section 40 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short, 'the Act'). Thereafter, plaintiffs along with family members filed an application under Section 32(1) of the Act for restoration of possession. However, due to law and order problem in respect of the land in the said survey numbers, the subject land was under the custody of Tahsildar, Asifnagar Mandal.

7. On filing further application to restore possession, the Tahsildar, Asifnagar Mandal passed order dated 12.02.2014 observing that plaintiffs are the legal heirs of original protected tenant in respect of land to an extent of Acs.3.04 guntas in Survey Nos.82, 83, 84 & 124 of Gudimalkapur Village, Asifnagar Mandal, Hyderabad and therefore they are entitled for restoration of possession of the land under Section 32(1) of the Act, allowed the petition and directed the Mandal Revenue Inspector to deliver possession of the above land to the petitioners by conducting necessary panchnama.

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8. As per the directions of the Tahsildar, Asifnagar Mandal, the Revenue Inspector visited the above said land conducted survey, demarcated the land and delivered possession of the land to the plaintiffs and other family members on 14.02.2014 in the presence of the Village Revenue Officer, Police personnel and Panchas. The said order was challenged by filing appeal under Section 90 of the Act, and the Joint Collector, Hyderabad District, passed order dated 31.10.2014 dismissing the appeal.

9. Plaintiffs allege that the husband of defendant No.1 had illegally occupied the land admeasuring 150 square yards and in collusion with her husband, fabricated a Gift Settlement Deed dated 09.07.2010; that the husband of defendant No.2 illegally occupied the land admeasuring 115 square yards and in collusion with defendant No.2 fabricated Gift Settlement Deed, and on the basis of the said Gift Settlement Deeds, the defendant Nos.1 and 2 are claiming as owners of the suit schedule properties; that defendant Nos.1 and 2 leased out 'A' and 'B' schedule properties to defendant No.3 and defendant No.3 is running business jointly in the above 'A' and 'B' schedule properties. According to plaintiffs, the two suit schedule properties form part of tenancy land of Acs.3.04 guntas.

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10. In the written statement filed by defendant Nos.1 and 2 they raised the plea against maintainability of suit. It is their case that as the plaintiffs are claiming rights over the suit schedule property in the nature of protected tenant, as per Section 99 of the Act, Civil Court has no jurisdiction to declare a protected tenant as owner of the property under Section 34 of Specific Relief Act, 1963, and as such, the suit is barred under Section 9 r/w Section 21 of Civil Procedure Code, 1908. Even otherwise the claim of the protected tenant as per Section 40 of the Act is only to the extent of 60% share but not to the entire extent.

11. Further, defendant Nos.1 and 2 denied claim of protected tenancy as per the provisions of Section 38E of the Act, and in failure to comply with provisions under Section 38E by the protected tenant, another option would be to obtain sale certificate under Section 38A of the Act before the Revenue Tribunal, i.e., the Revenue Divisional Officer; since the protected tenant has to pay the premium by issuing notice to the land- holder and only after conducting detailed enquiry as per the Act, the Revenue Divisional Officer is competent to issue sale certificate; that the subject matter of the suit schedule property does not form part of any of the revenue proceedings initiated by the plaintiffs along with sailing defendants; and that there is

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non-joinder of necessary parties, i.e., the husbands of defendant Nos.1 and 2 and prayed for dismissal of the suit.

12. Based on the pleadings of the parties, the trial Court framed following issues for consideration:

1. Whether this Court has territorial jurisdiction to entertain the suit in view of status of plaintiffs as protected tenant as per the provisions of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950?

2. Whether the suit is barred under law as per Section 19 of A.P (T.A.) Tenancy and Agricultural Lands Act, 1950?

3. Whether the plaintiffs shall be declared as absolute owner and entitle to recover possession in view of Section 34 of Specific Relief Act?

4. Whether the plaintiffs are entitled for injunction as prayed for?

5. To what relief ?

13. On behalf of plaintiff, P.W.1 was examined and documents Exs.A1 to A.20 were marked. On behalf of defendants DW1 to DW 4 were examined and documents Ex.B1 to Ex.B51 were marked.

14. In O.S.No.666 of 2015 the trial Court answered issues 1 to 4 against plaintiffs.

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15. The following issues arise for consideration.

1. Whether appeal suit CCCA No.215 of 2019 is maintainable?

2. Whether trial Court committed error in dismissing O.S.No.666 of 2015.

3. To what relief ?

16. According to plaintiffs and defendants, other than defendants 1 to 3, late M Ram Narsimha Reddy was the protected tenant of land to an extent of Ac.3.04 guntas spread over Survey Nos. 82, 83, 84 and 124, Gudimalkapur village and they have succeeded to the said land. In O S No. 666 of 2015, the prayer is three fold. To declare plaintiffs and defendants 4 to 22 as absolute owners of suit 'A' and 'B' schedule properties ; to deliver peaceful and vacant possession of the said properties by evicting defendant Nos. 1 to 3; and to grant injunction restraining defendants 1 to 3 or through them any other person from interfering with the ownership and possession.

17. The suit schedule properties bears municipal house numbers. According to plaintiffs these two properties form part of Acs.3.04 guntas of land spread over Survey Nos.82, 83, 84 and 124, Gudimalkapur village, claimed by plaintiffs on which

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late M.Rama Narsimha Reddy was the protected tenant. This plea of plaintiffs was rejected by the trial Court.

ISSUE No.1:

18. Before going into the merits, it is necessary to clear the preliminary objection raised on behalf of defendants 1 to 3. It is vehemently contended that defendants 4 and 5 in the suit cannot file an appeal against dismissal of the suit.

19. Remedy of Appeal against the judgment and decree by the trial Court is statutorily engrafted in the form of Section 96 of CPC. Since, it is a statutory provision vesting right to avail remedy of appeal, to avail such remedy the person must satisfy the requirements of Section 96. Section 96 envisages that a party aggrieved by the decree can file an appeal challenging the said decree. In other words, provision envisages remedy in the form of appeal only against a decree. When suit is dismissed, it implies that the defendant has succeeded before the trial Court. Any finding recorded by the trial Court in the process of deciding the issue may have no impact on the defendant since he has succeeded in the suit and suit was dismissed. However, certain exceptions are carved out to this general principle, viz., if a finding is recorded by the trial Court, which is binding on the defendant it may operate as res-judicata in any legal proceedings, then the defendant is entitled to assail the validity

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of findings in the form of appeal; and when the judgment and decree affects the right of a defendant even when suit is dismissed.

20. There is large volume of precedent decisions on scope and ambit of Section 96 and competency of defendant in availing the remedy of appeal against dismissal of the suit. Few of them are noted here under:

21.1. Supreme Court in Deva Ram v. Ishwar Chand¹, held as under:

"26. It is provided in Section 96 of the CPC that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeal from the decision of such court. So also, Section 100 provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus sine qua non in both the provisions is the 'decree' and unless the decree is passed, an appeal would not lie under Section 96 nor would it lie under Section 100 of the Civil Procedure Code. Similarly, an appeal lies against an 'order' under Section 104 read with Order 43 Rule 1 of the Civil Procedure Code where the 'orders' against which appeal would lie have been enumerated. Unless there is an 'order' as defined in Section 2(14) and unless that 'order' falls within the list of 'orders' indicated in Order 43, an appeal would not lie.

27. Thus, an appeal does not lie against mere 'findings' recorded by a court unless the findings amount to a 'decree' or 'order'. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he cannot question those findings before the appellate court. (See Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393 : (1974) 3 SCR 882] ."

(emphasis supplied)

21.2. Supreme Court in Sripathi Susheela v. K. Venkata Ramana Rajeswari Devi Devi², held as under:

"15. A reading of this Section will immediately show that appeal lies from a decree passed by the Court. Therefore, unless there is a challenge to the decree no appeal can lie. This is the plain reading of Section 96 C.P.C."

(emphasis supplied)

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21.3. Supreme Court in Baldev Singh v. Surinder Mohan Sharma³, held as under:

"15. The first respondent in relation to his disputes with the appellant herein has been pursuing his remedies in appropriate proceedings. What would be the effect of the said judgment and decree in a departmental proceeding is required to be determined by the appropriate authorities. Only because a departmental proceeding was initiated against the appellant on the complaint of Respondent 1 he, only thereby, cannot be said to have any locus to prefer an appeal as has been contended by Mr Srivastava. A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned. It is not the contention of Respondent 1 that in the event the said judgment and decree is allowed to stand, the same will cause any personal injury to him or shall affect his interest otherwise. Dissolution of marriage of the appellant and his first wife would also have no repercussion on the property in suit. As noticed hereinbefore, the effect of the aforementioned statements made by the appellant in the second suit shall have to be considered by the courts and the departments concerned on their own merits.

(emphasis supplied)

21.4. Supreme Court in Banarsi v. Ram Phal⁴, held as under:

"8. Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lal [AIR 1967 SC 1470 : (1967) 3 SCR 153] , Jatan Kumar Golcha v. Golcha Properties (P) Ltd. [(1970) 3 SCC 573] and Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] .) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.

………..

10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:

(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.

(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.

(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross- objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the

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amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent. (emphasis supplied)

21.5. Supreme court in State of A.P. v. B. Ranga Reddy⁵, held as under:

"37. We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendant State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order 41 Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order 41 Rule 33 of the Code, the appellate court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it."

(emphasis supplied)

21.6. The Division Bench of High Court of A.P. in

Konda Lakshman Babu Ji v. State of A.P.⁶ held as under:

"5. It is well settled that a party who is adversely affected by the decree can alone appeal against it. In a case where a finding has been recorded against the defendant but the suit has been dismissed, he may challenge, that finding if it is res judicata and is binding upon him in future. In other words if the decree against the plaintiff could not have been passed without deciding an issue against the defendant, the defendant could probably challenge that finding in an appeal. However, if the plaintiff's suit can be dismissed without recording any finding against the defendant and yet if a finding has been recorded against the defendant, then such a finding is of no consequence because the success or failure of the plaintiff's suit is not interlinked with it and in a large number of cases depends upon the proof or otherwise of his own title. A plaintiff cannot succeed merely because the defendant has no title. Irrespective of whether a defendant has a title or not if the plaintiff fails to prove his title, his suit must fail. In other words if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the court would try and decide the case and the co-defendants would be bound by the decree. However, if the relief given to the plaintiff does not require the decision of a particular case, the co-defendants would not be bound as between them by any finding which might have been recorded in respect thereof. In a case of this type three conditions are necessary to be fulfilled. Firstly there must be a conflict of interest between the co-defendants. Secondly it should be necessary to decide that conflict in order to give the plaintiff and appropriate relief. Thirdly there must be a decision of the question between the co-defendants.

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6. In Secy. Of State v. Swaminatha Koundan] [1914 I.L.R. 37 Madras 25.] it has been laid down by a Division Bench of that court that no appeal lies against the decree which does not by itself in some way or other affect the appellant. It has been further observed in the decision that merely because there was an adverse finding in the judgment on a point not directly or substantially in tissue between the parties, a party aggrieved by such a finding would not have a right to contest it when the decree is entirely in his favour and does not necessarily imply that finding. In Venkobacharlu v. Radabayamma] [A.I.R. 1924 Mad. 858.] a Division Bench of the Madras High Court has laid down that for an appeal to lie, it is not necessary that the finding should be actually embodied in the decree. However, where a suit is dismissed and the judgment contains some findings as between co-defendants which are not embodied in the decree nor implied therein such findings do not amount to res judicata and are not appealable. In Mannam Latchayya v. Surabathuni Kotamma] [1924 47 MLJ 743.] it has been held that a party in whose favour a decree has been passed cannot appeal against the decree merely on the ground that the finding on one of the issues is against him as such a finding would not be res judicata. In that decision a large number of earlier decisions have been reviewed. Reference may in particular be made to the decision in Jamait-Un-Nissa v. Lutf-Un-Nissa] [1885 ILR 7 All.] in which a Full Bench of Allahabad High Court held that a party not aggrieved by a decree was not competent to appeal against the decree on the ground that an issue was found against him. In Gogineni Bapayya v. Gogineni Ramakrishnayya] [AIR 1945 Mad. 39.] it has been held by a Division Bench of Madras High Court that the defendants having secured the dismissal of the suit as not maintainable in the manner prayed must accept it and as there was nothing in the decree which would affect the defendants adversely and as no finding in the judgment could operate as res judicata, no appeal by him was maintainable in Kesavan v. Lakshmy Amma] [AIR 1968 Kerala 154.] the principle which has been laid down is that in a case where there are two defendants who have a dispute inter se and if that dispute has been decided, one of the defendants aggrieved by the finding recorded on the contrary between the two [defendants can appeal against that finding only if it is res judicata against him in subsequent suit. It is therefore clear that if all the defendants have common interest in obtaining the dismissal of the suit filed by the plaintiff and if for dismissing the suit it is not necessary to decide the controversy between the defendants inter se, the finding recorded on the controversy between the defendants themselves would not be res judicata. No appeal in the aforesaid circumstances would lie againet the finding at the instance of the defendant aggrieved by it." (emphasis supplied)

22. The principles that emerge from above precedents can be summarised as under:

1. An appeal under Section 96 of CPC lies against the decree in the suit.

2. An appeal does not lie against mere findings recorded by a Court unless the findings amount to a decree or order.

3. Where a suit is dismissed, even if an adverse finding is recorded against defendant on some issue, the defendant has no right to file appeal and can not question those findings before the appellate Court.

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4. To file an appeal, a person must be one whose right is affected by reason of judgment and decree.

5. Section 96 of CPC is silent on who can prefer appeal. However, to prefer an appeal, person must be prejudicially or adversely affected by the decree.

6. Unless there is a challenge to the decree no appeal shall lie.

23. Taking note of principles evolved in the above precedent decisions, the issue requires consideration, having regard to the peculiar facts of this case.

24. Plaintiffs and defendants 4 to 22 were all family members and legal heirs of late N.Rama Narasimha Reddy, who was recognised as protected tenant of land to an extent of Acs.3.04 guntas in Survey Nos.82, 83, 84 and 124 of Gudimalkapur village. In the suit plaintiffs prayed to declare plaintiffs and defendants 4 to 22 as absolute owners of suit 'A' and 'B' schedule properties; to direct defendants 1 to 3 to deliver peaceful and vacant possession of the suit 'A' and 'B' schedule properties to the plaintiffs and to grant consequential injunction restraining defendants 1 to 3 from interfering with the suit schedule properties.

25. Issue no.3 formulated for consideration by the trial Court in O.S.No.666 of 2015 is whether plaintiffs should be declared as absolute owners and entitled to recovery of possession.

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While discussing the submissions and evidence on record on issue no.3, trial Court held that plaintiffs failed to establish whether the suit schedule property is part and parcel of Acs.3.04 guntas of protected tenancy land. The trial Court upheld the contentions of defendants 1 and 2 that since 1995 suit schedule structures were existed and suit is barred by limitation for recovery of possession. Observing that dispossession by defendants 1 and 2 or their husbands was not established by the plaintiffs by placing cogent evidence, the trial Court held that plaintiffs have not made out any case for declaring them as absolute owners and title holders of suit schedule 'A' and 'B' properties and therefore not entitled to recovery of possession. Though, defendants 4 to 22 are arrayed as defendants, plaintiffs and defendants are family members. All of them together claiming that the suit schedule properties belong to them and defendants 4 to 22 are supporting the plaintiffs all along. As the first prayer sought by the plaintiffs is to declare plaintiffs and defendants 4 to 22 as joint owners of suit schedule 'A' and 'B' property, in fact, defendants 4 to 22 are in disguise plaintiffs before the trial Court. The findings in the judgment and the decree by the trial Court are equally binding on defendants 4 and 5 and affects their right to claim the suit schedule properties in any independent proceedings and prosecute further litigation. Therefore, in the peculiar facts of

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this case, the appellants are aggrieved by findings in the judgment and the decree and are entitled to challenge the judgment and decree rendered by the trial Court in O.S.No.666 of 2015. Thus, the objection on maintainability of appeal filed by defendants 4 and 5 is stated to be rejected.

ISSUE No.2 :

26. Admittedly all the defendants except defendant Nos.1 to 3 and plaintiffs are the legal heirs of Late M.Ram Narsimha Reddy and these defendants are sailing with the plaintiffs. As per the order of the Collector, Hyderabad dated 20.12.1958, late M.Ram Narsimha Reddy is declared as the protected tenant. The Revenue authorities recognised plaintiffs and defendants 4 to 22 as legal heirs of late M.Ram Narsimha Reddy and possession of the land to an extent of Acs.3.04 guntas in Survey Nos.82, 83, 84 and 124 of Gudimalkapur village was delivered to the plaintiffs and other family members on 14.02.2014 in the presence of Village Revenue Officer, police personnel and Panchas. As urged by the plaintiffs, the land was in the custody of Tahsildar and defendant Nos.1 and 2 were never in possession. Further, the order passed by the Tahsildar was challenged before the Collector, and the Joint Collector passed order dated 31.10.2014 dismissing the petition affirming the order passed by the Tahsildar, Asifnagar Mandal.

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27. Based on the orders of the Tahsildar, the plaintiffs along with defendant Nos.4 to 22 made an attempt to take possession from Defendant Nos.1 and 2 over the suit schedule properties. The defendants 1 and 2 filed Writ Petition No.231 of 2015 challenging the order of the Tahsildar and obtained interim direction against the plaintiffs and others not to interfere with possession and enjoyment of the schedule property. The said interim direction is subsisting as on to-day.

28. It is pertinent to note that during cross-examination, PW.1 has admitted that he has not filed original protected tenancy certificate before the Court as the same was filed before the Revenue authorities, and he has also not filed death certificate of Late M. Ram Narsimha Reddy before the Revenue authorities; and that he did not have knowledge about Khasara Pahani, Seshala Pahani and other Pahani Records to show that his grandfather was in possession in the above said survey numbers, and the other documents, viz., Sethwar, Town Survey Land Record (TSLR) and Vasul Bhaki were also not filed before the Court; he admitted further that as per Section 40 of the Act, the right of the protected tenant is 60% and that of land-lord is 40% till the protected tenant obtains 'Protected Tenant Certificate'; that there were cases filed by them under Sections 40 and 32 of Tenancy Act, 1950 initially against Quamarunnisa Begum in respect of the above mentioned survey numbers and

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subsequently after the death of Quamarunnisa Begum, himself and other family members filed a case against the legal heirs of Quamarunnisa Begum and they have not made them as parties in the present suit; that 40% of Pattedar rights were given to Quamarunnisa Begum through Late M. Ram Narsimha Reddy; that he cannot say under which document the ownership rights have been transferred through the original pattedar and what documents are available subsequent to his birth; that constructions in plaint 'A' and 'B' Schedule properties are true.

29. During his cross-examination, PW.1 deposed that he has not sought cancellation of registered Lease Deed and registered Gift Deeds, but simply filed the present suit for declaration of title, recovery of possession and consequential injunction and that he has not issued any legal notice to defendant Nos.1 and 2 except issuing notice to defendant No.3; and further deposed that he cannot say when he was put in possession of the suit Schedule 'A' & 'B' properties and that he has not challenged the withdrawal of rents by defendant Nos.1 and 2 deposited by defendant No.3.

30. It appears serious disputes arose on various aspects of the land leading to disturbance to law and order and Executive Magistrate in exercise of powers vested in him under Section 145 of Cr.P.C., took control of the subject land and kept it in

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possession of the Tahsildar. At the time of taking possession by the Tahsildar, panchanama was conducted by Mr.Ghousuddin Deputy MRO. Panchanama also contains the sketch drawn by him. Panchanama records that the open land available and taken possession is Ac.3.04 guntas excluding structures. On 2.2.2005, the Deputy Mandal Revenue Officer, Asifnagar submitted report to the Mandal Revenue Officer. This report also discloses handing over of Ac.3.04 guntas of land minus existing structures . The panchanama drawn on the same day also emphasises the same aspect.

31. Ex.A-4 is a report submitted by Special Revenue Inspector, Asifnagar, Hyderabad. By this report, he informs the Tahsildar the exercise undertaken by him to identify the land claimed by the plaintiffs in survey Numbers 82, 83, 84 and 124 of Gudimalkapur village and delivery of possession of the land. He encloses to the report panchanama conducted by Sri K.Balaiah, Deputy Mandal Revenue Officer, Asifnagar mandal on 2.2.2005; sketch map drawn at that time; report of the Deputy Mandal Revenue Officer along with sketch; panchanama conducted on 18.10.2003 by Mr.Ghousuddin Deputy Mandal Revenue Officer containing sketch. From the report of the Special Revenue Inspector, it is apparent that he placed reliance on sketch and reports earlier prepared in the years 2003 and 2005.

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32. By proceedings of Tahsildar dated 12.02.2014 (Ex.A1), the Tahsildar directed handing over of possession of the land to the plaintiffs and their family members by withdrawing the orders under Section 145 Cr.P.C. Accordingly, panchanama (Ex.A3) was conducted on 14.2.2014. A report was drawn by Special Revenue Inspector on same day and the land was handed over to the family members of the plaintiffs. While handing over the land again same thing was reiterated i.e., handing over of Ac.3.04 guntas excluding the structures as per Ex.A4.

33. It is thus clear that even by the years 2003 and 2005 the land identified in Sy.Nos.82, 83, 84 and 124 excludes five structures and what was handed over to the family of the protected tenant was Ac.3.04 guntas excluding the structures.

34. From Ex.B-16 to B-50 marked on behalf of defendants 1 to 3, it is apparent that even prior to 2003, to be precise, by 1995 structures were in existence and property was assessed for payment of house tax and electricity and water connections were provided. Therefore, it is clear that suit schedule structures were in existence much prior to 1995 and at any rate the family members of the protected tenant were aware of existence of such structures when survey was conducted and panchanama was drawn in the year 2003 and even in the year

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2005. What was highlighted in the orders of Tahsildar (Ex.A1), and the panchanama dated 14.2.2014 was only reflection of what was recorded in the years 2003 and 2005. It is thus apparent that the land taken possession by the Tahsildar in pursuant to order made by Executive Magistrate in exercise of power under Section 145 Cr.P.C., excluded the five structures noticed on field and recorded therein and the suit schedule properties are two structures out of these five structures mentioned therein.

35. In a suit for declaration of title and possession, the burden is on the plaintiff to adduce evidence in support of his claim and cannot depend on the weakness in the evidence of the defendant. Plaintiffs miserably failed to show that the structures mentioned in suit schedule 'A' and 'B' are forming part of Ac.3.04 guntas on which tenancy rights were conferred on late N.Rama Narasimha Reddy. No evidence is brought on record to show total extent of land in survey numbers 82, 83, 84 and 124, extent of land owned by the original pattedar and whether any other person owned land. In the absence of clear material to show that two houses mentioned in the schedule appended to the suit were forming part of land on which tenancy rights were recognised in favour of late N.Rama Narasimha Reddy, declaration sought by the plaintiffs cannot be granted.

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36. Evidence on record clearly points out that the suit schedule structures were in existence even prior to 1995. It is also apparent from Ex.B.22 notice dated 14.02.1995 issued by the Municipal Corporation of Hyderabad that there were structures by then. The Corporation alleged unauthorised constructions which are the suit schedule properties. The evidence relied on by defendants 1 to 3 also point out that defendant No.3 is in physical possession of Schedule 'A' and 'B' properties in the capacity of tenant and he was also paying rents to defendant Nos.1 and 2. It is pertinent to note that certificate under Section 39-E which would have clinched the issue is not even produced by the plaintiffs for the reasons best known to them to prove the ownership rights.

37. Further, Ex.B.11-Certified Copy of Caveat shows that defendant No.4, viz., Sri M.Narender Reddy, son of N.Ramanarsimha Reddy has surrendered the land held by him to the original pattedar, viz., Mir Kutbuddin Khan and others. Thus, he has no right, interest and title or possession in respect of the property.

38. For all the aforesaid reasons, we are of the opinion that the trial Court has not committed any error in dismissing the suit.

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CCCA No. 89 of 2019:

39. This appeal is filed by the defendant in O.S.No.857 of 2016 who is tenant of suit schedule properties. The suit is filed by defendants 1 and 2 in O.S.No.666 of 2015 praying to grant decree of eviction of tenant. The trial Court granted decree of eviction. Incidentally, O.S.No.1550 of 2014 (renumbered as O.S.No.856 of 2016) was filed by third defendant in O.S.No.666 of 2015, a tenant of defendants 1 and 2 praying to grant decree of perpetual injunction against plaintiffs, defendants 1 and 2 and other defendants in O.S.No.666 of 2015. O.S.No.856 of 2016 filed by tenant to grant decree for perpetual injunction was dismissed. This has become final as no appeal is preferred.

40. Defendants 1 and 2 claim absolute owners of suit 'A' and 'B' schedule properties. They have leased out these properties to defendant no.3. Rental deed was executed on 08.11.2012 for a period of three years. The rental deed recorded the terms of lease. It was agreed by the third defendant to pay monthly rent of Rs.40,000/- to defendant no.1 and Rs.10,000/- to defendant no.2. According to defendants 1 and 2 from the inception of tenancy, the third defendant has not complied strictly with the clauses of the rental deed with regard to Schedule 'A' and 'B' properties and on several occasions, the cheques issued by the third defendant were returned on the ground of 'insufficient

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funds' by the bank. According to defendants 1 and 2, no rent was paid from February, 2014 to September, 2014. Vexed with the attitude of third defendant, the defendants 1 and 2 issued legal notice dated 02.12.2014 narrating the violations of rental deed and terminating the lease.

41. Defendant No.3 contended that he is a tenant of defendant Nos.1 and 2 in terms of registered Rental Deeds dated 08.11.2012 executed by them in respect of 'A' and 'B' schedule properties; during subsistence of lease agreements, defendant No.3 had received legal notice from the plaintiffs and other family members, claiming as absolute owners by having right, title and interest over 'A' and 'B' suit schedule properties, and demanded defendant No.3 to vacate 'A' and 'B' suit schedule properties and to deliver vacant, peaceful possession along with arrears of rent as per the proceedings of the Tahsildar, Asifnagar Mandal dated 12.02.2014 within fifteen (15) days from the date of receipt of the notice; that defendant No.3 informed the same to defendant Nos.1 and 2; since defendant No.3 received rival claims from one M. Sanjeeva Reddy and others, defendant No.3 stopped paying rents to defendant Nos.1 and 2. Alleging that plaintiffs and other defendants are interfering in the possession and enjoyment of the suit schedule properties, 3^rddefendant instituted O.S.No.856 of 2016.

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42. Based on the pleadings the following issues are framed by the trial Court:

1. Whether the quit notice dated 02.12.2014 is true, valid and binding on the defendants ? If so, whether the plaintiffs have validly terminated the tenancy of the defendants in respect of suit schedule property ?

2. Whether the plaintiffs are entitled for eviction of defendants from the suit schedule property and for recovery of possession of the same ?

3. Whether the plaintiffs are entitled for future mesne profits as prayed for ?

4. To what relief ?

43. Issues 1 and 2 are answered in favour of the plaintiffs. On issue No.3, the trial Court observed that the quantum of mesne profits could not be decided as plaintiffs have to take necessary steps for ascertaining mesne profits by filing application under Order XX Rule 12 of CPC; and ordered for eviction of tenants.

44. In CCCA No.89 of 2019, the following issues arise for consideration:

1. Whether trial Court is right in ordering eviction of appellant from the suit schedule land by the judgment and decree rendered in OS No. 857 of 2016 ?

2. To what relief?

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45. Admittedly, there is no dispute with regard to relationship of landlord and tenant. The lease was for a period of three (03) years commencing from 08.11.2012 till 08.11.2015 and there was no renewal of lease by the landlord, i.e., defendant Nos.1 and 2.

46. It is the assertion of defendants 1 and 2 that from February, 2014 defendant No.3 stopped paying rent. In the cross examination the defendant no. 3 could not dislodge this assertion. There is a categorical denial to the suggestion on payment of rent and not issuing receipts. She has also not lead any evidence to support her contention that rents were paid promptly and that no arrears of rent was due from her. It is admitted that whenever rents were paid the owners issued receipts in proof of payment of rent. Admittedly for the period from February, 2014 to September, 2014 receipts as proof of payment of rents were not produced by the defendant no.3. It is not explained by the 3^rddefendant why receipts were not collected from the owners if rents were paid promptly. No explanation is offered as to why she has not insisted rent receipts when she was promptly collecting the receipts on payment of rent earlier to February, 2014. In the legal notice dated 2.12.2014 asking the defendant to vacate the suit schedule 'A' and 'B' properties, it was asserted that rents were not paid from February, 2014 to September, 2014. It was also

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asserted that defendant was not paying electricity charges and water cess. In the reply notice, defendant no.3 only vaguely denied without furnishing the details of payment of rents and payment of electricity and water charges. No evidence is lead to show that rents were promptly paid.

47. In O.S.No.1550 of 2014 (renumbered as O.S.No.856 of 2016), third defendant filed I.A.No.892 of 2014 to permit her to deposit rents in the Court. This I.A. was opposed by defendants 1 and 2. They contended that the third defendant was not paying monthly rent from February, 2014. In support of their contention, they have also produced receipt of rent books and contended that the receipts disclosed payment of rent only up to January, 2014. The trial Court observed that in view of production of rent receipt books showing payment of rents only up to January, 2014, the burden shifted to plaintiff and that plaintiff failed to discharge the burden. Accepting the plea of defendants 1 and 2, the trial Court directed the third defendant to deposit arrears of rent from February, 2014. Though, in C.R.P.No.4439 of 2015 filed by 3^rddefendant this direction of the trial Court was set aside by this Court, it was set aside on the ground that issue of non-payment of rent before October, 2014 was not the subject matter of the suit and that O.S.No.857 of 2016 was pending. However, the order of the trial Court

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discloses that it has perused receipt of rent books and those books revealed payment of rent only upto January, 2014. No other evidence is brought in the suit to dislodge the said finding.

48. It is thus apparent that the third defendant defaulted in payment of rent from February, 2014 to September, 2014 and deposited rent from October, 2014 only, after he obtained orders from Civil Court in I.A.No.892 of 2014 in O.S.No.1550 of 2014 (renumbered as O.S.No.856 of 2016).

49. Clause-2 of the Lease Agreement (Ex.A18) under the heading 'THE LESSEE HEREBY AGREES WITH THE LESSOR AS FOLLOWS:', fixes the rent payable per month and schedule of payment; i.e., rent to be paid on or before 10^thof every English month without accumulation of arrears. Clause-1 under the heading 'THE LESSOR HEREBY AGREES WITH THE TENANT AS FOLLOWS:' fixes maximum grace period as 5 days to deposit rent and in the event of breach of any condition land lady reserves the right to determine the lease and to enter into possession of the property.

50. The evidence brought on record by defendants 1 and 2 establishes that the defendant no.3 defaulted in payment of rent and the lease is determined.

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51. Further, Section 116 of the Indian Evidence Act, 1872 restrains a tenant denying the title of the land lord of such tenant during the continuation of tenancy. In the instant case under the guise that plaintiffs issued legal notice directing her to hand over possession of the suit schedule properties, he stopped paying rents to defendants 1 and 2, and filed O.S.No.1550 of 2014 impleading plaintiffs and all the other defendants praying to issue decree of injunction not to interfere in possession and enjoyment of suit schedule properties and after securing orders from the civil Court started depositing rents in the Court. Her actions are clearly contrary to statutory mandate. Even otherwise, third defendant admitted of not paying the rent for the month of October, 2014 when due and deposited the rent in the Court after the Civil Court granted interim order.

52. On the scope of Section 116 of Indian Evidence Act, few decisions of the Apex Court are noted hereunder:

52.1. In Kamaljit Singh Vs Sarabjit Singh⁷Hon'ble Supreme Court held:

"14. Section 116 of the Evidence Act deals with estoppel against tenants and of licensees or persons in possession. Estoppel under this provision falls in the category of estoppel by contract and is relatively a recent development. The rule embodied in Section 116 simply prevents the tenant in occupation of the premises from denying the title of the landlord who let him into possession, just as it applies to a mortgagor or a mortgagee, vendor or a vendee,

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bailer or a bailee and licensor or a licensee. The rationale underlying the doctrine of estoppel against the tenant's denial of title of his landlord was stated by Jessel, M.R. in Stringer's Estate, In re, Shaw v. Jones-Ford [Stringer's Estate, In re, Shaw v. Jones- Ford, (1877) LR 6 Ch D 1 (CA)] as under: (Ch D pp. 9-10)

"… where a man having no title obtains possession of land under a demise by a man in possession, who assumes to give him a title as tenant, he cannot deny his landlord's title…. That is perfectly intelligible doctrine. He took possession under a contract to pay the rent as long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession, has not a title. That is a well-established doctrine. That is estoppel by contract."

15. There is considerable authority for the proposition both in India as well as in UK that a tenant in possession of the property cannot deny the title of the landlord. But if he wishes to do so he must first surrender the possession of the property back to him. He cannot, while enjoying the benefit conferred upon him by the benefactor, question the latter's title to the property. Section 116 clearly lends itself to that interpretation when it says:

"116.Estoppel of tenant and of licensee of person in possession.— No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."

16. A three-Judge of this Court in Sri Ram Pasricha v. Jagannath [Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184] reiterated the principle that a tenant in a suit for possession was estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The title of the landlord, declared this Court, even otherwise irrelevant in a suit for eviction of the tenant. The only exception to the rule of estoppel as stated in Section 116 (supra) may be where the tenant is validly attorned to the paramount title-holder of the property or where that the plaintiff landlord had, during the intervening period, lost his title to the property. We are not, however, dealing with a case where the respondent tenant claims that the property is vested in anyone else who could be described as the paramount title-holder or there was any extinction of the title of the appellant on any count whatsoever since the induction of the respondent as a tenant into the premises. We need not, therefore, be detained by any one of those considerations. What is important is that so long as a jural relationship exists between the respondent tenant and the appellant and so long as he has not surrendered the possession of the premises in his occupation, he cannot question the title of the appellant to the property. The inevitable inference flowing from the above proposition would be that (vis-à-vis the respondent) the appellant was and continues to be the owner of the premises in question since the year 1992 when the respondent was inducted as a tenant. Reckoned from the year 1992 the appellant has

established his ownership of the premises for a period of five

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years before the filing of the eviction petition thereby entitling him to invoke the provisions of Section 13-B of the East Punjab Urban Land Restriction Act, 1949." (emphasis supplied)

52.2. In Omprakash Vs Mishri Lal⁸, Honble Supreme Court held:

"34. That a tenant during the continuance of the tenancy is debarred on the doctrine of estoppel from denying the title of his landlord through whom he claims tenancy, as is enshrined in Section 116 of the Evidence Act, 1872, is so well settled a legal postulation that no decision need be cited to further consolidate the same. This enunciation, amongst others is reiterated by this Court in S. Thangappan v. P. Padmavathy [S. Thangappan v. P. Padmavathy, (1999) 7 SCC

474] and Bhogadi Kannababu v. Vuggina Pydamma [Bhogadi Kannababu v. Vuggina Pydamma, (2006) 5 SCC 532] . In any view of the matter, the appellants, being the son of Bhola Nath, who at all relevant time, was the landlord vis-à-vis the original defendant and the respondents in terms of Section 3(j) of the Act, their status as landlords for the purpose of eviction under the Act, could not have been questioned so as to non-suit them for want of locus." (emphasis supplied)

53. Thus, there was no cause for the third defendant in defaulting in payment of rent merely because third party sets up a claim, rushes to the Court praying to grant injunction and seeks leave of the Court to deposit rent in the Court instead of paying rents to his landlords. All this is done by doubting landlords claim of ownership on suit schedule properties. In view of Section 116 of the Indian Evidence Act, 1872 and the law enunciated by the Hon'ble Supreme Court, the first defendant is precluded from taking such plea and not paying rent on that ground.

54. This Court is of the opinion that there is no bar against a landlord to seek eviction even before expiry of the lease period,

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and that it is not obligatory for the landlord to wait till the expiry of lease. It is pertinent to note that the lease can be terminated by either issuance of quit notice as per the terms of the lease deed / contract between the parties or on failure to comply any of the conditions of lease deed under Section 111 of the Transfer of Property Act, 1882. In the case on hand, 3^rd defendant defaulted in payment of rents and challenged the ownership claim of his landlords. Therefore, decision of the defendants 1 and 2 to determine the lease and to direct the 3^rd defendant to vacate the suit schedule premises is valid and legal. We do not see any error in the findings recorded by the trial Court.

55. In the result, for the aforesaid reasons, C.C.C.A.No.215 of 2019 and C.C.C.A.No.89 of 2019 are dismissed. Pending miscellaneous petitions if any shall stand closed.

________________________________

JUSTICE P.NAVEEN RAO

_______________________________

JUSTICE M.G.PRIYADARSINI

Date : 10.06.2022 Ndr/kkm

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HONOURABLE SRI JUSTICE P.NAVEEN RAO

AND

HON'BLE SMT. JUSTICE M.G.PRIYADARSINI CITY CIVIL COURT APPEAL NO.89 of 2019 &

CITY CIVIL COURT APPEAL NO.215 of 2019

Date: 10.06.2022 Ndr/TVK/kkm

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