HON’BLE SRI JUSTICE G. CHANDRAIAH S.A. No. 770 of 2014 DATE: 10.11.2014 Between:
Gondi Lingaraju and another .. Appellants and Dasari Kusuma Sujatha and another .. Respondents JUDGMENT:-
This Second Appeal is directed against the Common Judgment dated 25.06.2004 delivered in A.S.No. 172 of 2013 on the file of XII Additional District Judge, Visakhapatnam whereby the Common Judgment dated 23.07.2013 delivered in O.S.No. 775 of 2010 by the learned II Additional Senior Civil Judge, Visakhapatnam directing defendant Nos.1 and 2 to vacate the plaint schedule property and deliver the vacant possession to the plaintiff within three months from the date of the judgment and also pay her arrears of rent, was confirmed and further the Cross Appeal filed by the plaintiff insofar as her entitlement of future rents is concerned, is allowed.
The brief admitted facts of the case are that the 1st defendant is the husband of the 2nd defendant and the 3rd defendant is the elder brother of the 2nd defendant. Originally, the 3rd defendant, who is the absolute owner of site in an extent of 243.33 square yards in Plot No.42 in Sy.No.162 situated in Chinagadili village, Visalakshinagar, Visakhapatnam within the limits of Greater Visakhapatnam Municipal Corporation, constructed a three-storied building bearing D.No.9-
376. While so, in the year 1997, the plaintiff purchased first floor of the building from the 3rd defendant, and since then she and her husband have been residing therein, and subsequently, on 29.04.2009, she also purchased the 2nd floor from the 3rd defendant for Rs.15.00 lakhs by virtue of a registered sale deed. Even before the plaintiff purchased the 2nd floor, the 3rd defendant leased out the 2nd floor to defendant Nos.1 and 2 on monthly rent of Rs.10,000/- and the plaintiff expressed her view that she was going to purchase the 2nd floor from the 3rd defendant and at the time of purchasing the property they have to vacate the premises. When the plaintiff purchased the 2nd floor, defendant Nos.1 and 2 requested her to allow them to continue to stay as tenants on the same terms and conditions as leased out by the 3rd defendant, and on such request, the plaintiff allowed them to stay further in the premises, but defendant Nos.1 and 2 defaulted in payment of rents to her from 29.04.2009 onwards.
In the written statement filed by the 2nd defendant, it is averred that out of love and affection the 3rd defendant agreed to allow defendant Nos.1 and 2 to build 2nd floor in the plaint schedule property, therefore, they are in occupation of it as licensees granted by the 3rd defendant, as such, the suit for eviction is bad and untenable, and subsequently, the 3rd defendant, by changing his mind, created nominal document in favour of the plaintiff in respect of the 2nd floor which is not valid under law and the plaintiff is not aware of the understanding arrived at between them and the 3rd defendant at the time of construction of three-storied building in the schedule property and the plaintiff is aware of the relationship existing between defendant Nos.1 & 2 and the 3rd defendant and the conditions of licence executed in favour of Valamala Vasudeva Rao and Janaki Rama Rao on 13.04.1995 are acted and approved between defendant Nos.1 and 2 and the 3rd defendant.
The case of the 3rd defendant as averred in his written statement is that before the plaintiff purchased the 2nd floor by virtue of the registered sale deed dated 29.04.2009, he leased out the schedule property to defendant Nos.1 and 2 on monthly rent of Rs.10,000/-, and with the permission of the plaintiff, they continued to stay as tenants on the same terms and conditions of the lease, but the 3rd defendant has not entrusted the job of constructing a three-storied building in the plaint schedule site to the 1st defendant and there is no understanding that 1/3rd of cost of construction of the building is to be contributed from the funds of the 1st defendant so that defendant Nos.1 and 2 will remain staying in the 2nd floor of the building as irrevocable licensees. They have not exercised any right of licencees under irrevocable licence and till the purchase of the property by the plaintiff, defendant Nos.1 and 2 used to stay as tenants and pay rents to him at Rs.10,000/- per month.
The learned counsel for the appellants – defendant Nos.1 and 2 has contended that the 1st respondent – plaintiff and the 2nd respondent - 3rd defendant have failed to establish the landlord and tenant relationship by adducing proper evidence, and issuing quit notice by the plaintiff without establishing such relationship has no basis to maintain the suit for eviction of the appellants as tenants, as such, the judgment under appeal is liable to be set aside.
Heard the learned counsel for the appellants and perused the entire material on record.
Ex.A1 is the xerox copy of the registered sale deed dated 29.04.2009 indicating that the plaintiff purchased the 2nd floor of the schedule property from the 3rd defendant. Exs.A4 and A6 are the property tax receipts dated 03.03.2010 and 12.08.2010 respectively which show that the plaintiff paid the property tax. PW1 – plaintiff in her evidence stated that she terminated the lease in favour of defendant Nos.1 and 2 with effect from the mid night of 30.04.2010 by issuing Ex.A2 - legal notice dated 30.04.2010 calling upon them to vacate the schedule property and pay arrears of rents. DW1 – 3rd defendant has deposed on the same lines as stated in his written statement. Even though DW2 – 2nd defendant stated in her evidence that they invested 1/3rd of the cost of construction of the building entitling them to reside in the suit schedule property, there is no such whisper in their written statement filed by them. In her cross-examination, she stated that her husband spent an amount of Rs.5,00,000/- for construction of the 2nd floor but no document to that effect is filed. V.Vasudeva Rao, who is examined as DW3, deposed that the 1st defendant, who is his sister’s son, invested 1/3rd of the cost of construction of the building, but in his cross- examination, he stated that he does not know whether the 1st defendant is a registered contractor and has spent an amount of Rs.5.00 lakhs and he has not filed any documentary evidence to prove his version. M.J.Rama Rao, who is examined as DW4, deposed that the 1st defendant is his brother-in-law and the 3rd defendant entrusted construction of three-storied building to the 1st defendant in the presence of DW3 with an understanding to contribute 1/3rd of the cost of construction so that defendant Nos.1 and 2 can enjoy the 2nd floor of the building peacefully, and accordingly, he invested, but in cross-examination, he stated that he did not file any document to prove that the 1st defendant contributed for the construction of the 2nd floor.
From the evidence available on record, it is manifest that DWs.2 to 4 have not produced any documentary evidence substantiating their evidence that the 1st defendant spent an amount of Rs.5.00 lakhs and the 3rd defendant entrusted construction of three-storied building to the 1st defendant with an understanding to contribute 1/3rd of the cost of construction so that defendant Nos.1 and 2 can enjoy the 2nd floor peacefully. That apart, PW1, the plaintiff and DW1 – 3rd defendant have categorically deposed that defendant Nos.1 and 2 stayed in the portion of the 2nd floor as tenants by paying monthly rent of Rs.10,000/- and since 29.04.2009, the date of purchase of the 2nd floor by the plaintiff, they defaulted in payment of rents. Hence, it is clear that defendant Nos.1 and 2 are not licencees of the 3rd defendant, but only tenants who regularly paid monthly rents as per the terms and conditions of lease and further defaulted in payment of rents from 29.04.2009 onwards. When there is ample evidence that defendant Nos.1 and 2 are not licencees of the 3rd defendant and the fact that they have been residing in the 2nd floor has not been denied by them either in their written statement or in their evidence, it can be safely concluded that there is landlord and tenant relationship existing between them based on oral agreement by the plaintiff with defendant Nos.1 and 2. The absence of specific evidence by any of the independent witnesses with regard to the stay of defendant Nos.1 and 2 in the 2nd floor of the building is not a ground to disprove or deny their landlord and tenant relationship. It is also clear from the record that defendant Nos.1 and 2 filed O.S.No.1522 of 2010 seeking relief of permanent injunction against the plaintiff and the 3rd defendant, and the suit was dismissed. Challenging the same, defendant Nos.1 and 2 preferred appeal in A.S.No.173 of 2013 and the same was also dismissed. Further, there is no justification on the part of defendant Nos.1 and 2 that they have not defaulted in payment of rents to the plaintiff. Hence, this Court is of the opinion that the trial Court has rightly observed that the defendant Nos.1 and 2 have willfully evaded payment of rents from 29.04.2009, and accordingly, directed them to vacate the schedule property and pay arrears of rent to the plaintiff and the view taken by the lower appellate Court confirming the Common Judgment passed by the trial Court, is perfectly justified.
The findings recorded by the lower appellate Court being based on proper appreciation of the evidence, both oral and documentary, available on record, this Court, in exercise of the power under Section 100 of the Code of Civil Procedure does not see any infirmity discernable from such findings warranting interference, more so, when the appellants-defendant Nos.1 and 2 failed to show any question of law, much less substantial question of law involved in the second appeal, warranting its admission.
For the foregoing reasons, the Second Appeal is devoid of merits and is accordingly dismissed at the stage of admission. However, at this juncture, the learned counsel for the appellants - defendant Nos.1 and 2 has submitted that the plaint schedule property is a residential house and the appellants are in possession and enjoyment of the same, as such, six month’s time may be granted to them to vacate the premises.
Having regard to the submission made by the learned counsel for the appellants, this Court is not inclined to grant six month’s time, but the appellants shall vacate the schedule property i.e. 2nd floor of the plaint schedule building within a period of four months from the date of receipt of a copy of this judgment. No order as to costs.
As a sequel to the dismissal of the appeal, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
G. CHANDRAIAH, J 10.11.2014 bcj