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
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
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?
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?
the suit is bad for non-joinder of the three sisters of the plaintiff
the plaintiffs are entitled to be declared as owners of the suit property?
the plaintiffs are entitled to delivery of the suit land?
the plaintiffs are entitled to mesne profits? If so at what rate?
the suit is barred by limitation?
the suit property is undervalued?
the defendants have perfected their title by adverse possession over
the suit property?
(10) To what
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
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.
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.