Equivalent Citation: 2005(5)ALD223, 2005(6)ALT60
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
SA No. 1245 of 2003
Decided On: 15.07.2005

Appellants: Kuchanapalli Neelama and Ors.
Vs.
Respondent: Deekonda Sadanandam and Ors.

Hon'ble Judges:
L. Narasimha Reddy, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Ghanshyamdas Mandhani, Adv.

For Respondents/Defendant: Y. Srinivasa Murthy, Adv. for T.S. Anand, Adv. for the Respondent No. 1, Milind G. Gokhale, Adv. for the Respondent No. 2, Khasim Razvi, Managing Director for the Respondent Nos. 3 to 10

Subject: Limitation

Subject: Property

Acts/Rules/Orders:
Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Transfer of Property Act, 1882 - Section 106; Limitation Act, 1963 - Schedule - Article 65; Civil Procedure Code (CPC), 1908 - Order 20, Rule 12

JUDGMENT

L. Narasimha Reddy, J.

1. Defendants in O.S. No. 207 of 1994, on the file of the Court of II Additional Senior Civil Judge, Warangal, are the appellants. The respondents filed the suit for the relief of declaration of title, in respect of the suit schedule property of 324 Sq. yards in Warangal Town, recovery of possession thereof and for award of mesne profits, at the rate of Rs. 3,000/- per month, from the date of institution of the suit.

2. The suit was initially filed by the respondents 1 to 3, who are the sons of late Deekonda Ramachandram. During the pendency of the suit, the third respondent died, and his legal representatives, respondents 4 to 11, were brought on record. Appellants 1 and 2 figured as defendants. On account of the death of the second appellant, his legal representatives, appellants 3 to 7, were brought on record.

3. The respondents filed the suit pleading that late Ramachandram purchased the suit schedule property, through a sale deed dated 27-5-1960, marked as Ex.A-1, and constructed a shed therein. On 1-4-1974, the property is said to have been leased by Ramachandram, to the first appellant. It was pleaded that Ramachandram died on 30-1-1975, and sometime thereafter, the first appellant surrendered her lease. They alleged that a fresh lease commenced with effect from 6-3-1977, on a monthly rent of Rs. 24/-, and when they insisted on enhancement of rent in 1985, the appellants surrendered the premises. It was their case that the first appellant filed O.S.No. 171 of 1985, in the Court of Second Additional Junior Civil Judge, Warangal, against the respondents, for the relief of perpetual injunction, and on the strength of an order of temporary injunction, she entered the property once again, claiming title to the property in herself.

4. The appellants resisted the suit by denying the facts pleaded by the respondents. They alleged that the first appellant purchased the property, under an agreement of sale, dated 16-1-1973, from late Ramachandram, and eversince then, she is in possession and enjoyment of the property as of right. The plea of adverse possession was raised. It was also alleged that the suit was not preceded by any valid notice terminating the lease.

5. The Trial Court decreed the suit, through its judgment dated 15-3-2000. The appellants filed A.S.No. 85 of 2000, before the Court of V Additional District Judge, Warangal. The lower Appellate Court dismissed the appeal, through its judgment dated 20-8-2003. Hence, this second appeal.

6. Sri Ghanshyamdas Mandhani, learned Counsel for the appellants, submits that the suit filed by the respondents was not maintainable in law. He contends that the respondents failed to prove the existence of lease, at any point of time, in favour of the appellants. It is also his case that through cogent evidence, the appellants proved their plea of adverse possession. The learned Counsel further submits that the Courts below recorded a finding, to the effect that the appellants continued to be the tenants of the premises, and in such an event, the only course open to the respondents was, to institute proceedings under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short "the Act"), since the rent was below Rs. 1,000/-. He submits that the suit is barred by limitation and the Trial Court ought not to have entertained it. He advanced another contention to the effect that there was no valid termination of the lease, assuming that the appellants are lessees. He relied upon relevant precedents in support of his contention. He takes exception to the fixation of mesne profits by the Trial Court without undertaking any enquiry.

7. Sri Y. Srinivasa Murthy, learned Counsel for the respondents, on the other hand, submits that the Courts below recorded concurrent findings to the effect that the respondents proved their title to the suit schedule property, and that the possession of the appellants is not adverse to the respondents and that this Court cannot interfere with the same in a second appeal. He contends that no question of law falls for consideration, in this second appeal. The learned Counsel takes objection to the plea of the appellants, as to the maintainability of the suit, by invoking the provisions of the Act, on the ground that it was not raised either before the Trial Court, or before the lower Appellate Court. As regards non-issuance of notice under Section 106 of the Transfer of Property Act, he contends that once the appellants denied the title of the respondents in O.S.No. 171 of 1985, there was no necessity to the respondents to issue a notice under Section 106 of the Transfer of Property Act, before filing the suit.

8. On the basis of the pleadings before it, the Trial Court framed the following issues:

(1) Whether the suit premises was bearing Municipal No. 14/346/4 and it corresponds to the new No. 14-1-88 and again renumbered as 14-1-49?

(2) Whether a 16.1.73 late Ramachandram the father of the plaintiff sold the suit premises to D.1 for a consideration of Rs. 18,500/- and executed a document to that effect and put D.1 in possession of the same?

(3) Whether the suit is bad for non-joinder of the three sisters of the plaintiff ?

(4) Whether the plaintiffs are entitled to be declared as owners of the suit property?

(5) Whether the plaintiffs are entitled to delivery of the suit land?

(6) Whether the plaintiffs are entitled to mesne profits? If so at what rate?

(7) Whether the suit is barred by limitation?

(8) Whether the suit property is undervalued?

(9) Whether the defendants have perfected their title by adverse possession over the suit property?

(10) To what relief?

9. To prove their case, the respondents examined PWs.1 to 4 and marked Exs.A-1 to A-64. Ex.A-1 is the sale deed, through which the property was purchased by late Ramachandram. Ex.A-3 is the Encumbrance Certificate in relation to suit schedule property from 1960 to 1964, and Ex.A-4 is such a certificate for the period from 1984 to 1993. Exs.A-8, A-13 to A-18, A-46, A-60 and A-61 are documents relating to the period subsequent to the filing of the suit. Hence, they are not of much relevance. Exs.A-19 to A-36 are the property tax receipts from 1985 to 1993. The other exhibits comprised of pleadings and orders in certain other proceedings, demand notices for tax, etc.

10. On behalf of the appellants, DWs.1 and 2 were examined and Exs.B-1 to B-27 were marked. Exs.B-1 to B-15, B-17 to B-20 are the receipts for payment of licence fee, issued to the second appellant by the Municipal Authorities. Ex.B-16 is an alleged receipt of planning fee. The other documents are not of much relevance.

11. The respondents pleaded that their ancestor by name Ramachandram purchased the property, and thereafter, leased it for sometime to the first appellant. It was alleged that after the death of Ramachandram, the respondents granted lease afresh, on a monthly rent of Rs. 24/-, but the appellants vacated the premises when the demand was made for enhancement of rents. They alleged that having vacated the premises in 1984, the appellants entered the premises once again, after obtaining an order of temporary injunction in O.S. No. 171 of 1985, on the file of the Second Additional Junior Civil Judge, Warangal. This plea of the respondents was denied by the appellants.

12. Apart from denying the title of the respondents, the appellants came forward with a plea of title in themselves. They recognized the ownership of Ramachandram over the property, but pleaded that they purchased it under an agreement of sale, dated 16-1-1973, for a valuable consideration. The said agreement of sale was not filed into Court, by stating that it was handed over to one of the mediators, while disputes arose, and the mediator did not return it, thereafter. Therefore, it emerges that the appellants failed to prove the transfer of the suit schedule property in their favour, from Ramachandram.

13. The appellants raised the plea of adverse possession. Heavy burden rests upon them to substantiate it. It was required of them, to prove that they remained in possession of the property, adverse to the interests of the respondents, and that such a possession continued beyond 12 years, as contemplated under Article 65 of the Schedule to the Limitation Act. For this purpose, not only the factum of possession, but the nature of it needs to be proved, to the satisfaction of the Court.

14. So far as the starting point of the possession of the appellants over the property is concerned, the respondents pleaded that initially, the appellants remained in possession as tenants, and after surrendering it, they gained entry into it, on the strength of an order of temporary injunction. It is a matter of record that the appellants filed O.S.No. 171 of 1985, in the Court of Second Additional Junior Civil Judge, Warangal, for perpetual injunction, against the respondents. The title of the respondents was denied in it. However, for reasons best known to them, the appellants abandoned the suit and it came to be dismissed for default. The Trial Court disbelieved the theory of surrender of possession, and held that the appellants continued to be the tenants. Even if it can be commented that there was uncertainty in the judgments under appeal, as to whether the appellants need be treated as tenants as trespassers, it is upto the appellants to prove their contention, in the context of the plea of adverse possession.

15. Not a single document, in support of their possession over the suit schedule property, was filed by the appellants. Ex.B-16 is an alleged receipt dated 9-5-1978, for payment of "planning fee". On the basis of this, it is sought to be contended that an application was made to the Municipality, by the second appellant, for undertaking the construction. The appellants failed to explain as to under what provision the so-called planning fee was paid. The receipt does not disclose the factum of submission of any construction plan. They did not file any sanctioned plan or certified copy of it. The payment of fee for the purpose of construction becomes relevant, if only the permission was applied for, or was granted. In fact, an adverse inference is also possible to the effect that though the application if filed, it was not entertained, for reasons such as, lack of entitlement of the appellants over the land. If really the appellants enjoyed the possession, as of their right, there would certainly have been record of one nature, or the other, in their support. Their failure to place such a record would render their plea of adverse possession, untenable. The Courts below have recorded findings in this regard on the basis of evidence, and it is impermissible in a second appeal, to appreciate the evidence and to disturb concurrent findings of fact.

16. The contention, as to the maintainability of the suit for recovery of possession in the context of the provisions of the Act, at once, appears to be attractive. However, it cannot be accepted for more reasons than one. Firstly, the plea was not raised either in the Trial Court, or in the Appellate Court. The grievance of the appellants was as to the non-issuance of notice under Section 106 of the Transfer of Property Act. The Courts below repelled the same by stating that the very fact that O.S. No. 171 of 1985 was filed by the appellants, denying the title of the respondents, would relieve the latter from the obligation to issue such a notice. Secondly, not a pure question of law, which sometimes can be permitted to be raised even at the stage of second appeal. It is either a pure question of fact, or at least a mixed question of fact and law. For that, a specific plea must exist in the pleadings and it has to be proved through cogent evidence. Therefore, it cannot be entertained at this stage, for the first time.

17. There is some force in the contention of the learned Counsel for the appellants, about the ascertainment of mesne profits. The Trial Court determined the mesne profits, at the rate of Rs. 1,000/-per month, just on the basis of guesswork and not on the basis of any cogent evidence. The mesne profits in respect of an immovable property have to be decided, after ascertaining the nature of property, the rent or income on that property, based on utility and locality. Admittedly, the respondents did not lead any evidence, in this regard. The Trial Court could have relegated such an enquiry, to a later stage, as provided for under Order 20 Rule 12 CPC. In that view of the matter, the decree insofar as grant of mesne profits is concerned, is liable to set aside, leaving it open to the respondents to make an application in regard.

18. For the foregoing reasons, the second appeal is allowed in part, to the extent of setting aside the decree of granting mesne profits against the appellants, but sustaining the decree in all other respects, including the one for declaration of title and recovery of possession. It shall be open to the respondents to file a separate application before the Trial Court, for ascertainment of mesne profits, in accordance with law. The appellants are granted two months time from today, to vacate the suit schedule premises. On expiry of that period, it shall be open to the respondents to initiate execution. There shall be no order as to costs.