HONOURABLE SRI JUSTICE S.RAVI KUMAR SECOND APPEAL No.748 OF 2007 Dated 12-11-2014 Between:
S.Narsingam and others.
..Appellants.
And:
B.Vijaya Bhaskar and another.
..Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR SECOND APPEAL No.748 OF 2007 JUDGMENT:
This appeal is against judgment dated 9-2-2007 in A.S.No.501 of 2005 on the file of III Additional Chief Judge, City Civil Court, Hyderabad whereunder judgment dated 29-6-2005 in O.S.No.1677 of 2001 on the file of II Junior Civil Judge, City Civil Court, Hyderabad, is confirmed.
Brief facts leading to this appeal are as follows:
Appellants herein are plaintiffs and respondents herein are defendants and the above referred suit O.S.No.1677 of 2001 and parties are hereinafter referred to as ‘plaintiffs and defendants’ as arrayed in the suit for convenience.
Initially, sole plaintiff filed O.S.No.1677 of 2001 seeking eviction of defendants contending that schedule premises was leased out to first respondent on 7-7-1997 on a monthly rent of Rs.3,500/- under Ex.A.7 and that the first defendant inducted D.2 into the schedule property without permission and knowledge of the plaintiff and that the second defendant is a tenant and the plaintiff terminated the Tenancy by issuing notice under Ex.A.2 and that the defendants are liable to be evicted and also liable to pay mesne profits for use and occupation.
First defendant remained exparte and second defendant participated in the trial contending that D.1 and plaintiff filed the collusive suit and that he purchased the suit property from the builder of Satya Sai Apartments under an agreement of sale by paying an amount of Rs.90,000/- and when the plaintiff, D.1 and the builder were interfering with his possession, he filed suit for injunction and as a counter blast, this suit is filed. He contended that he has no knowledge of the notice issued to D.1 under Section 106 of Transfer of Property Act, and the suit of the plaintiff without claiming declaration of title is not maintainable as the interest over the suit schedule property was transferred in favour of D.2 much prior to the alleged sale deed in favour of plaintiff. During pendency of the suit, sole plaintiff died and his L.Rs. were brought on record as plaintiffs 2 to 5. Trial court framed issues and proceeded with trial, during which, three witnesses are examined on behalf of plaintiff besides marking thirteen documents and one witness is examined on behalf of contesting D.2 and C.1 to C.3 are marked. Issues framed by trial court are as follows:
1. Whether the plaintiffs are entitled to evict the defendants from the plaint schedule property and delivery of vacant possession of the same?
2. Whether plaintiffs are entitled for future mense profits as prayed for?
On an overall consideration of oral and documentary evidence, trial court held that plaintiffs failed to prove the jural relationship of landlord and tenant, as such, plaintiff is not entitled for the relief of eviction and dismissed the suit. Aggrieved by the dismissal of the suit, plaintiffs preferred an appeal to the Chief Judge, City Civil Court, Hyderabad and III Additional Chief Judge, City Civil Court, Hyderabad, on a reappraisal of oral and documentary evidence, confirmed the findings of the trial court and held that plaintiffs are not entitled for eviction of second defendant and dismissed the appeal.
This court admitted the second appeal treating ground No.11 as a substantial question of law that arises for consideration in this appeal and the grounds under main ground No.11 are as follows:
1. Whether the courts below were justified in placing burden of proof on the plaintiffs to prove that the second defendant is the sub tenant of the first defendant.
2. Whether in the absence of any written agreement it is permissible to plead possession in part performance of the alleged agreement under Section 53 (a) of the Transfer of Property Act.
3. Whether mere suit for possession, without seeking declaration of title is not maintainable.
4. Whether Ex.A.7 lease deed in not legally proved even though P.W.3 who is brother of executant of Ex.A.7 identified signature thereon as that of Defendant No.1 and also because Defendant No. did not file written statement denying execution of lease deed and did not enter witness box.
Heard both sides.
Advocate for appellants mainly contended that when plaintiff specifically pleaded that the property was let out to D.1 under Ex.A.7 and examined P.W.3-brother of D.1 who identified the signature of D.1 on Ex.A.7, the jural relationship of landlord and tenant between plaintiff and D.1 is established and when D.2 claims that he was inducted into possession by D.1, the plea of plaintiff that D.2 is sub- tenant has to be accepted but both trial court and appellate court have wrongly appreciated evidence and decided the issues against the plaintiff and these findings are liable to be set aside. He further submitted that from the material, the main dispute is with regard to the nature of possession and when there is no evidence supporting the version of D.2 that he occupied the schedule property as an agreement holder, discarding the evidence of plaintiff which is supported and corroborated with documents Exs.A.1 to A.13 and evidence of P.Ws.2 and 3 is illegal and incorrect. He further submitted that when D.1 who is the original lessee remained exparte and the lease deed executed by him is duly proved through P.W.3, findings of the trial court and the first appellate court that the jural relationship of landlord and tenant is not established, is absolutely correct.
On the other hand, advocate for D.2 submitted that D.2 is a prior agreement holder and both P.Ws.1 and 2 clearly admitted in their evidence that they have no personal knowledge about the alleged lease transaction and when the evidence on record do not establish the jural relationship of landlord and tenant, the simple suit for eviction is not maintainable and both trial court and first appellate court have rightly rejected the relief of plaintiffs and that there are no grounds to interfere with the concurrent findings. He further submitted that no question of law is involved in this case leave alone substantial question of law. He submitted that grounds urged under main ground No.11 are only in respect of factual aspects and therefore, appeal is liable to be dismissed.
Now the point that would arise for my consideration in this appeal is whether there is any substantial question of law which require determination by this court? POINT No.2:
It is the specific case of plaintiff that D.1 is their tenant on a monthly rent of Rs.3,500/- and he inducted D.2 into plaint schedule property without their permission. So, the primary burden is on the plaintiff to prove that there is a jural relationship of landlord and tenant between themselves and D.1. P.W.1 is the son of first plaintiff and P.W.2 is wife of the first plaintiff and they deposed supporting the pleadings in the plaint. But in the cross-examination, P.W.1 admitted that he has no personal knowledge about execution of Ex.A.7 document and that he was not present at the time of execution of this document.
This Ex.A.7 bears the signature of P.W.1 and he admitted in his cross-examination that he was not present at the time of execution, and his father late Narsingam, i.e., first plaintiff obtained his signature on Ex.A.7 subsequently. If the evidence of P.W.1 is compared with the pleadings, it is clear that his evidence is contrary to the pleadings in respect of execution of Ex.A.7. According to pleadings, first defendant executed lease deed in favour of first plaintiff but the contents of Ex.A.7 are contrary to it and it is a document executed jointly by S.Narsingam (first plaintiff) and B.Vijaya Bhaskar (D.1).
Trial court rightly observed that this Ex.A.7 could no way confer any rights on the parties as it is not in accordance with Section 107 of Transfer of Property Act.
Now the main argument of advocate for plaintiff is that P.W.3 who is brother of D.1 clearly identified the signature of D.1 on this Ex.A.7 and therefore, the document is duly proved. But the contention of the plaintiffs’ advocate cannot be accepted because mere identification of signature is not sufficient without proving contents of document. Here as seen from the evidence, except marking the documents, the plaintiffs failed to prove the contents of the document to show that there was jural relationship of landlord and tenant between first plaintiff and D.1. On the other hand, both P.Ws.1 and 2 clearly admitted that they have no knowledge about this document and they admitted that they were not present at the time of its execution. In fact, P.W.2 clearly admitted in her cross-examination that she has no knowledge about the ownership of the plaint- schedule property and the lease deed Ex.A.7. When the plaintiffs failed to discharge their initial burden of proving, jural relationship of landlord and tenant, arguments of advocate for appellant cannot be accepted. The trial court and first appellate court have elaborately discussed evidence of both parties with reference to Ex.A.7 document and came to the conclusion that plaintiffs failed to prove this document. I do not find any wrong appreciation of evidence either by trial court or by first appellate court and on the other hand, both the courts meticulously considered the evidence on record and observed that plaintiffs failed to prove the jural relationship of landlord by giving sound reasons. As rightly pointed out by advocate for D.2 when the relief of eviction is based on the relationship of landlord and tenant and when the same is not established, plaintiffs are not entitled for the said relief and both the courts have rightly refused to grant the relief to the plaintiffs. For these reasons, the point is held against the plaintiff.
POINT No.1:
The substantial question of law urged in the grounds is that findings of the trial court that a suit for possession is not maintainable without seeking declaration is not correct and therefore, the same has to be set aside.
Learned counsel for the plaintiffs submitted that there is no need for the plaintiffs to seek any declaration and to support his argument, he placed reliance on the judgment of the Supreme Court in DR RANBIR SINGH Vs. ASHARFI LAL () wherein the Honourable Supreme Court held as follows:
‘The question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title if disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. In order to decide whether denial of landlord’s title by the tenant is bona fide the Court may have to go into tenant’s contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant’s denial of title of the landlord is bona fide in the circumstances of the case.”
I have perused the above referred decision. In that case, there is sufficient proof to show that the relationship between the parties was landlord and tenant and when such relationship is established, the Honourable Supreme Court held that there is no necessity to seek for a declaration. This proposition is not disputed by the other side but it is contended that it is not applicable to the case on hand since the plaintiffs failed in proving the jural relationship of landlord and tenant.
On a scrutiny of the material, I have to accept the argument of learned counsel for the second defendant because the plaintiffs have miserably failed in proving the jural relationship of landlord and tenant and as such, the above decision is no way helpful to the plaintiffs.
On a scrutiny of entire material and the grounds urged in the second appeal, I have to accept the contention of the advocate for second defendant that there is absolutely no question of law involved in this case leave alone substantial question of law and as such, the second appeal is devoid of merits. The point is, accordingly, held against the plaintiffs.
In the result, this Second Appeal is dismissed with costs.
As a sequel to the disposal of this appeal, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 12-11-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR SECOND APPEAL No.748 OF 2007 Dated 12-11-2014 Dvs