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IN THE COURT OF SENIOR CIVIL JUDGE :: AMALAPURAM :: E.G.DT:
Present: Sri T.Venkateswarlu, Senior Civil Judge, Kothapeta FAC. Senior Civil Judge, Amalapuram. Tuesday, the 4th day of March, 2014. ORIGINAL SUIT NO.158/2005 Between:
Maddimsetti Mukteswararao. ..Plaintiff.
AND 1.Pullella Lakshminarayana (died) 2.M/s.Gayathri Coastal Agencies, Amalapuam rep. By the Managing Parner, Sri Pullella Suryanarayana. 3.Senior Regional Manager, Retail Sales, HPC Ltd., Petroleum Bhavan, Andhra University, Waltair. 4.Pullela Subrahmanyam. 5.Pullela Umamaheswararao. 6.Pullela Suryanarayana. 7.Pullela Venkataranayana. 8.Pullela Subbalakhsmi. (D4 to D8 are added as L.Rs of D1 as per orders in
IA No.239/09 dt.13.10.2009. ..Defendants.
This suit came up before me on 21.1.2014 in the presence of Sri
N.S.Sastry, Advocate for plaintiff and of Sri Pappu Srinivasarao, Advocate for D2 to D6 and D8; D7 remained exparte and having stood over for consideration, this court made the following:
:: J U D G M E N T ::
This is a suit for eviction, past damages of Rs.7,20,000/-, future damages, for mandatory injunction of removal of constructions including under-ground tanks and for costs.
2. The plaint averments, in brief, are that previously plaintiff's father
Maddimsetty Satyanarayana let out the suit schedule property in favour of one Boda Venkataratnam to carry on petrol pump business for a period of 20 years. The said Venkataratnam carried on the business in the name and style of M/s Boda Venkataratnam. On his death, his son
Sriramanarasimham continued the said business. After expiry of lease period, Sriramanarasimham entered into a fresh lease for a period of five 2 years under a registered lease deed dated 16.12.1975. Subsequent to
December 1975, the said Sriramanarasimham stopped placing orders for supply of petrol and kerosene. Then, his wife Boda Annapurnadevi and D1 herein with the consent of Sriramanarasimham secured agency. They started the business in the name and style of M/s.Gayatri Agencies (D2), a partnership firm. Before expiry of the lease period, this partnership firm entered into an agreement of lease with the plaintiff, who became owner of the property in pursuance of partition among himself, his brothers and father. D1 was managing partner of the said partnership firm. However,
D1 did not co-operate to enter into regular registered lease deed. The said agreement was for a period of two years with the agreed rate of Rs.150/- per month and the same was expired by 30.9.1982. The defendants did not pay rent as agreed. The plaintiff was persuading for the fresh lease deed, vide notices dated 9.4.1991, 30.4.1991 and 30.9.1991. Then, the
Senior Regional Manager of the HPCL., Visakhapatnam (D3) responded to the notice and asked the plaintiff to send the relevant documents in support of his claim vide his letter dated 22.4.1991. Though the plaintiff submitted relevant documents, there was no progress in the matter. Then, plaintiff started demanding the defendants to vacate the premises. Then D1, as the Managing Partner of D2, entered into a fresh lease agreement, commencing from 1.1.1992 for a period of 10 years at the monthly rent of
Rs.1300/- for the first five years and Rs.1600/- for the next five years. The plaintiff, by his letter dated 13.12.1991, communicated the terms of lease to the Regional Manager, HPCL., Visakhapatnam and requested to arrange payment of all arrears and also for the registered lease deed. The
Regional Manager,HPCL., Visakhapatnam received the said letter, signed by the D1 as the Managing Partner of D2, but nothing came out and no such registered lease was entered into. The plaintiff came to know that, 3
before expiry of earlier lease on 31.12.1991, Smt Boda Annapurnadevi
retired from the partnership and D1 alone was carrying the business as the sole partner. Later, plaintiff sent a petition dated 29.12.1999 to the Divisional
Magistrate, Amalapuram with a request to refuse the renewal of lease,
except by production of registered lease deed, with an intention to compel the defendants to enter into a fresh lease deed. The Divisional Magistrate made an enquiry into the said case and submitted his report to the District
Magistrate, Kakinada, informing that there was no subsisting lease and that
the defendants were not paying rents. Later, though District Magistrate gave notice to the defendants, nothing happened. Thus, after expiry of lease period by 31.12.2001, the defendants 1 and 2 are the tenants at sufferance. Plaintiff got issued a notice on 1.10.2005, demanding vacant possession and for damages. Though the defendants received the notice, they did not choose to give any reply. Hence the suit.
3. D1 filed written statement alleging that, in the year 1941 or so, one Pullitikurthy Venkanna leased out part of his property to Maddimsetti
Satyanarayana for a timber depot. Later, the said Satyanarayana also obtained some other property from Pullitikurthy Venkanna on lease for a limited period. Later, after expiry of lease period also, Maddimsetti
Satyanarayana continued in possession and sub-leased the same in favour of Boda Venkataratnam for a period of 20 years under a registered lease deed dated 30.11.1955. Later, another lease was entered into with Boda
Sriramanarasimham for a period of five years under registered lease deed
dated 26.9.1975. In the year 1976, as offered by Sriramanarasimham, D1
entered into partnership and started the firm under the name and style of
M/s.Gayathri Agencies and D1 was the Managing Partner. At that point of time, the original owner Pullitikurthy Venkanna started demanding to vacate 4 the premises. Then, he came to know about the fraud played by
Maddimsetti Satyanarayana. However, as he had invested huge amounts and there was no possibility to vacate the premises immediately, he asked the owner Pullitikurthy Venkanna to lease out the suit property. The said
Venkanna agreed and leased out the property initially and later, he proposed to sell Ac.0.18 cents of property and thus, D1 purchased the said
Ac.0.18 cents of land for a sum of Rs.30,000/- and paid entire sale consideration. However, he could not obtain registered sale deed, as the land happened to be the inam land and because of the intervention of plaintiff and his father. However, for the last 30 years, he has been in possession and enjoyment of the property and thus, he had perfected his title by adverse possession. It is pleaded that the lease agreement dated 1.10.1980 and the letter dated 30.11.981 are fabricated and forged documents. It is alleged that, plaintiff and his father with a view to grab the property only, made several complaints to the District Magistrate and
HPCL., Visakhapatnam. It is alleged that he did not choose to give reply to the notices from the plaintiff as he was suffering ill-health and also for the fact that, he was aware of the fact that the plaintiff was habituated in sending such complaints. It is also pleaded that, since the schedule property is inam land, this court has no jurisdiction to entertain the suit. He also disputed about the quantum of damages and thus sought for dismissal of the suit.
4. D3 filed written statement admitting the fact that, D1 and D2 are in possession and enjoyment of the property, disputing the lease between the plaintiff and D1; disputing the rate of rents, claimed by the plaintiff and finally seeking dismissal of the suit.
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5. After death of D1, D4 to D8 were brought on record as his legal heirs and D6 filed written statement, alleging that, plaintiff has no title to the property and that there was no landlord and tenant relationship between them; that there was no cause of action to the suit; that the suit was bad for non-joinder and mis-joinder of necessary parties.
6. With the above pleadings, the following issues are settled for trial:-
1. Whether the plaintiff has title over the schedule property? (Recasted issue as per orders in I.A.No.354/07 dt.27.12.2007)
2. Whether lease deed dated 1.10.1980 is true, valid and binding on the defendants?
3. Whether D2 perfected title over the suit schedule property by way of adverse possession?
4. Whether plaintiff is entitled for possession of the suit property?
5. Whether the plaintiff is entitled for past damages to a tune of Rs.7,20,000/-.
6. Whether plaintiff is entitled for future damages?
7. Whether plaintiff is entitled for mandatory injunction for removal of the structures?\
8. To what relief?
The following Addl. issues are settled on 22.4.2010 as per orders in I.A.No.347/2010:- 1.Whether the suit is bad for non-joinder and mis-joinder of parties?
2. Whether there is no landlord and tenant relationship between plaintiff and D1?
3. To what relief?
7. In the trial the plaintiff is examined as P.W.1. One Moram
Veerabhadraraois examined as P.W.2. One Bikkina Raghavendrarao is examined as P.W.3. Ex.A1 to A28 are marked for the plaintiff. D7 is examined as D.W.1. Ex. B1 to B25 are marked for the defendants.
8. Heard the counsel for plaintiff. Perused the written arguments filed for plaintiff and defendants. No representation for the defendants. In the 6 written arguments, the learned counsel for the plaintiff would contend that, it is a suit for ejection and it is a suit between landlord and tenant and though, in view of the contentions raised by the D1, it is necessary to look into the title incidentally, the decision on title is not necessary. According to the plaintiffs, the plaintiff's father secured a registered lease deed dated 9.8.1955 for a period of 95 years and initially entered into the lease for 20 years with Boda Venkataratnam for running petrol pump in the name and style of M/s.Boda Venkataratnam. According to the learned counsel, plaintiffs' father has every right to sub-lease the property under the lease deed in his favour. It is further contended that D1, as a power of attorney of
Boda Sriramanarasimham, entered into the registered lease deed dated 26.10.1975 marked as Ex.A1 and D1 himself paid Rs.5000/- on behalf of
Boda Sriramanarasimham. It is also the argument of the learned counsel for the plaintiff that, under Ex.A9, D1 entered into the lease agreement on 1.10.1980 for a period of two years and in the capacity of Managing Partner of M/s.Gayathri Coastal Agencies (D2), intimated the said lease agreement to D3. According to the learned counsel, Ex.A1 lease deed, for a period of five years, is the extension of lease under Ex.A10, executed by Maddimsetti
Satyanarayana, plaintiff's father in favour of Boda Venkataratnam. Thus, according to the learned counsel, these documents prove the relationship of landlord and tenant between the parties.
9. According to the learned counsel, when plaintiff's father was in possession of the property and sub-leased in favour of M/s.Boda
Venkataratnam under Ex.A10, Inam Abolition Act 1956 came into force. At that time, as proposed by Pullitikurthy Subbarao and others, the original owners, plaintiff's father purchased entire property and the said property was partitioned among the family members of Maddimsetti Satyanarayana 7 under the registered partition deed dated 2.7.1976. It is also the contention of the learned counsel that, under Ex.A13, plaintiff obtained sale deed from Pullitikurthy Subbarao and others. Thus, according to the learned counsel, in view of the proceedings under Ex.A11 dated 17.12.1978, the patta in favour of plaintiff, the execution of sale deed under
Ex.A13 and also registered partition deed, marked as Ex.B1, plaintiff has clear title to the plaint schedule property, which is part of total extent of
Ac.0.90 cents in RS No.25/4. The learned counsel then referred to about the notices sent to D1 to D3 and failure on the part of D1 and D2 to send the reply. According to the learned counsel, plaintiff could prove Ex.A9 lease deed dated 1.10.1980 with the evidence of PW.2 and PW.3.
Regarding the plea of adverse possession, learned counsel contended that, as per Section 116 of Evidence Act, the tenant is not entitled to deny the title of his landlord and non-payment of rent does not constitute adverse possession. According to the learned counsel, though it was the plea of
D1 that, he had purchased the property from Pulitikurthy Venkanna, DW.1 expressed his ignorance about the said transaction. It is the argument of the learned counsel that, in view of Ex.A22, the death certificate of
P.Venkanna, which shows that the said Venkanna died on 21.3.1963 itself, the allegation of lease and subsequent sale in favour of D1 is proved to be a false one. According to the learned counsel, there cannot be any dispute regarding the identity of the suit schedule property and DW.1 admitted categorically that Boda Venkataratnam, his son Boda Sriramanarasimham and D2 carried on the business in the premises as described in the plaint schedule property. The learned counsel referred to about the proposition that, when there is discrepancy as to the survey number boundaries would prevail. The learned counsel then referred to about the statements recorded by the R.D.O., Amalapuram, wherein the D1 admitted the lease in 8 favour of plaintiff's father, subsequent lease in favour of Boda
Venkataratnam initially for 20 years and then for 5 years again etc.,
Nextly, the learned counsel referred to about the rents that are being paid by the Axix Bank and Reliance Petrol bunk. According to the learned counsel, in view of the location of the suit schedule property, the plaintiff is also entitled to Rs.2,40,000/- per year towards damages. In support of his arguments, the learned counsel relied on the following judgments:
1. The State Bank of Travancore Vs. Arvindan Kuntu Panicker and others (AIR 1971 SUPREME COURT 996)
2. Angati Venkateswarlu alias Anpalakonda @ Konda Vs.
Maharanipeta Military Mosque rep. By Secy.of Committee for management (AIR 1972 A.P. 132) 3.Premendu Bhusan Mondal Vs. Sripati Ranjan Chakravarthy (AIR 1966 CALCUTTA 55).
4.Narayana Bhagwantrao Gosavi Balajiwala Vs. Gopal
Vinayak Gosavi and others (AIR 1960 SC 100).
5.CH.S.Hanumantha Rao Vs. S.Sainath and others (1999 (5)
ALT 309.
6.Darshanam Swamy @ Somaiah and others Vs. Rithu
Maihotra @ Rithu Kapur (2008 (1) ALT 404 (DB) 7.M.Chandraiah and another Vs. C.Narayana and another (2008 (4) ALT 421).
8.2008(4) ALT 2.1 (DN SC) = 2007 (6) SCJ 583.
9.Chatti Konati Rao and others Vs. Palle Venkata Subbarao ( 2011 (1) ALT 45 (SC).
10. On the other hand, the learned counsel for the defendants, in the written arguments, filed on behalf of D2, D4 to D6 and D8, it is contended that, plaintiff failed to prove Ex.A2, Ex.A6, Ex.A7, which are 9 contrary to the contents of Ex.A14 and they are fabricated with the help of
R.D.O., It is contended that, merely because the defendants did not send reply notice, it cannot be said that, there exists landlord and tenant relationship. Learned counsel would submit that, most of the documents are marked subject to objection and hence, they cannot be relied on without proof. It is the argument that, Ex.B1 cannot be relied on, since it is not pleaded in the plaint. Regarding Ex.A9, it is the argument that, it is only an agreement, but not a lease deed and apart from that, it is not proved and that PW.2 and PW.3 are only the friends of plaintiff. According to the learned counsel, there is no evidence to prove that there exists landlord and tenant relationship and with the evidence of DW.1 and the documents filed on their behalf, the defendants could prove their possession, which is adverse to the plaintiff. The learned counsel then referred to the provisions of Inam Abolition Act 1956, the legal position regarding the eviction proceedings and thus, sought for dismissal of the suit.
11. ISSUE NO.1 & ADDL. ISSUE NO.2:-
It is a suit for ejection on the premise of existence of landlord and tenant relationship. D1, representing D2 as the Managing Partner, denied such relationship and claimed title by adverse possession. Before going into the facts of the case, it may be necessary to bear in mind the following fundamentals in landlord – tenant disputes. It is a settled proposition of law that if the entry into the disputed property is in the capacity of tenant, he shall continue as tenant until he surrenders possession and he cannot set up title against his land lord. So, the popular say is that once a tenant is always a tenant. In Narayana Narasimh
Deshpande And ... vs Kashiraya Sengappa Nisabat (AIR 1961 Mys 35), it was held, 10 “9. Once it has been held that the original relationship created was one of landlord and tenant and once it is clear that it is not possible to hold that the interest of the signatories to this document was one which came to an end on the death of one on more of them, it must be held that all the signatories to the document and their successors-in-interest were in possession of the property only in the character of tenants. It is an undoubted proposition of law that a tenant so long as he continues in possession of the leased property without surrendering it or without giving up possession cannot claim any title higher than that of a tenant and cannot by any length of possession prescribe for such a higher title. The question therefore of limitation and adverse possession discussed by the courts below is really beside the point.”
12. In Subhash Chandra vs Mohammad Sharit And Ors (AIR 1990 SC 636), the Apex Court held, “7. It is true that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff. Where the landlord has not himself inducted the tenant in the disputed property and his right, are founded on a derivative title, for example, as an assignee, donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiff's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by s. 116 of the Evidence Act. The section does not permit the tenant, during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not 11 as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non-existent in the eye of law. By way of an illustration one may refer to a case where the original landlord had the right of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of disposition. The tenant in such a case can attack the derivative title of the transferee- plaintiff but not on the ground that the transferor-landlord who had initially inducted him in possession did not have the right to do so. Further since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is forbidden to plead that subsequently the landlord lost this right.
These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy.”
13. In State of A.P., and others Vs. D. Raghukul Pershad (D) by
L.Rs., and others (2012 (6) SCJ 398), the Apex Court has held, “The law is settled by this Court in D. Satyanarayana vs. P. Jagdish 1987(4) SCC 424 that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. Although, there are some exceptions to this general rule, none of the exceptions have been established by the appellants in this case. Hence, the appellants who were the tenants of the respondents will have to surrender possession to the respondents
before they can challenge the title of the respondents.”
14. In Ch. S. Hanumantha Rao And Others vs R. Sainath And
Others(1999 (6) ALD 308), it was held, “30. It has been next contended by the learned Counsel that the mutation of the name in the records of the corporation does not confer any title. In this case no mutation as such has been effected. Taking the view that such a mutation has been effected that will not automatically confer title upon the party whose name 12 has been mentioned in the records. The law is also settled on this point inasmuch as the main object being only for the purpose of collection of taxes from the person whose name is mentioned in the records.”
15. Coming back to facts of the case, plaintiff's father Maddimsetty
Satyanarayana under Ex.A10, the lease deed dated 09.08.1955, came into possession of the suit property and it was for a period of 95 years. He then leased out the suit schedule property to one Boda Venkataratnam for a period of 20 years to run petrol pump business. Ex.A21 is the registration extract of the lease deed dt. 30.11.1955. During this period D1 was working as a manager of the firm. It appears before the end of the said 20 years lease period Boda Venkataratnam died. His son Sriramanarasimhim continued the business. After the expiry of the said period, this
Sriramanarasimham entered into a fresh lease for five years. Ex.A1 is the registered lease deed dated 26.09.1975. The evidence on record further shows that the above said Sriramanarasimham gave up the business very soon. Then, his wife Boda Annapurnadevi and D1 started a partnership firm in the name of M/s.Gayathri Costal Agencies, Amalapuram and continued the business. D1 was the Managing Partner of the said firm.
Ex.B4 is the partnership deed. The evidence on record further discloses that at the time of entering into Ex.A1 registered lease deed, dated 26.9.1975,
D1 was the power of attorney of Sriramanarasimham and he signed the document in the capacity of power of attorney. The defendants are not disputing the genuineness of Ex.A1. Now the endorsements in this document show that, D1 represented Boda Sriramanarasimham as a
Special Power of Attorney. This document further proves the fact that, D1, as the Power of Attorney holder of Boda Sriramanarasimham, acknowledged the receipt of Rs.5000/-. Thus, it is proved that the 13 partnership between Boda Annapurnadevi and D1 was entered into subsequent to the lease agreement under Ex.A1. It is also a fact that subsequently, Boda Annapurnadevi retired from the partnership. The cross- examination of DW.1 further prove the fact that, D3 company soon after granting agency in favour of Boda Venkataratnam installed tanks in underground and also raised super structures and the very set up has been used later by Sriramanarasimham, then by Boda Annapurnadevi and D1 as the partnership firm and lastly by D1 as the sole proprietor. This evidence is sufficient to say that D1 at the first instance entered into the premises as a tenant only and at that point of time plaintiff's father was the landlord.
16. Now it is the case of the plaintiff that under a partition, plaint schedule property fell to his share and D1 & D2 entered into a lease agreement with him. According to the plaintiff Ex.A9 is the said agreement and it is dt.1.10.1980. Defendants themselves filed the registration extract of partition deed between the plaintiff and his family members, whereunder, the plaintiff claimed the suit property. It is marked as Ex.B1 and it is dated 03.07.1976. To prove his title, plaintiff also filed the registration extract of his sale deed dt.25.10.1985 and it is marked as Ex.A13. As already discussed above, defendants cannot question the title of plaintiff in view of Sec.116 of
Indian Evidence Act. However, since defendants raised the title dispute, and an issue to that effect has been settled, the plaintiff was forced to file these documents to prove his title. Hence, defendants cannot say that this part of evidence is without pleading and cannot be looked into. Defendants did not dispute the truth of Ex.B13. Plaintiff was only asked about the original sale deed. It was executed by the sons and grand sons of Pulletikurthi
Venkanna. In this document, it was also recited that previously, they reported no objection for grant of patta in favour of plaintiff and the Revenue 14 Officials also granted patta for the land to the plaintiff. D.W.1 in his cross- examination, expressed his ignorance about the Ex.B13 and its recitals.
17. According to the plaintiff, the Tahsildar, Amalapuram granted patta under the provisions of Inams Abolition Act to him on 17.12.1978.
Ex.A11 is the attested copy of proceedings of Tahsildar and the Patta is annexed to it. According to the plaintiff, when the original patta was filed in land acquisition proceedings, he got the copy of the document attested by the Head Master, Boys High School, Amalaparam. The contesting defendants are alleging that taking advantage of plaintiff's father's position as Village Munsif, plaintiff and his father fabricated the patta. It is a fact that the sons and grand sons of Pulletikurthi Venkanna, in execution of sale deed, it was recited that previously, they reported no objection for grant of patta in favour of plaintiff and hence, the Revenue Officials also granted patta. All this evidence clinchingly proves the title of the plaintiff. The two issues, accordingly, are answered in favour of the plaintiff and against the defendants.
18. ISSUE NO.2:-
It is proved that plaintiff is the owner of the suit property and there is landlord and tenant relationship between plaintiff and defendants 1 & 2. Now it is the case of the plaintiff that after the expiry of the five years lease, D1 and Annapurna Devi, who started the partnership in the name of
D2, entered into a lease agreement on 01.10.1980, marked as Ex.A9, whereby D1 and Annapurna Devi agreed to execute a registered lease deed. P.W.2 & 3 are the witnesses to this document. PW.2 is one Moram
Veerabhadrararao. He deposed that, by the year 1980, plaintiff and
Dr.Raghavendrarao were residing in the buildings, situated side by side and 15 he went to the house of Dr.Raghavendrarao fore treatment of his family members. He deposed that, when he went to his house,
Dr.Raghavendrararao was not in the house and he was informed that,
Dr.Raghavendrarao went to the house of plaintiff/neighbour and hence, he went to the said house and found plaintiff as well as Dr.Raghavendrarao there. He deposed further that, D1 came there and asked the plaintiff to sign on the agreement and in his presence, plaintiff and D1 signed the agreement. He further deposed that, as requested by D1, he along with
Dr.Raghavendrarao attested the agreement. PW.3 Dr.Raghavendrarao also deposed that, when he was at the house of plaintiff, PW.2 came there and in their presence, the agreement was signed by plaintiff and D1 and he along with PW.2 attested the said document. Though this two witnesses were cross-examined at length, nothing could be brought out to show that their evidence is false. Apart from that, DW.1 in his cross-examination categorically came out with the following admissions. He admitted a fact that, he had no disputes and enmity with the two witnesses. He expressed his ignorance about the fact that PW.2 worked as Sarpanch of Eedarapalli
Gram Panchayat. But he admitted that, PW.3 is a Doctor. He further admitted the fact that, his father used to go to PW.3 fore his treatment.
Hence, in view of this background of the two witnesses, there is absolutely nothing to discard their evidence. Hence, the same can be accepted. This document proves the fact that the parties agreed to go for a separate lease deed though all the terms and conditions were incorporated in the said document. It does not matter, whether such an agreement is sufficient in the eye of law or not. But the fact remains that, plaintiff and D1 entered into an agreement on 1.10.1980 for lease of the suit schedule property to run petrol pump business. No doubt, plaintiff is entitled to go for specific performance of the said agreement, when D1 failed to enter into regular 16 lease deed as agreed. But in a suit for ejection, the failure on the part of the plaintiff to enforce the agreement under Ex.A9 has no legal consequence.
Accordingly the issue is answered.
19. ISSUE NO.3:-
Admittedly, D2 did not pay rent to the plaintiff since 1980. P.W.1 categorically admitted the said fact. It is further suggested to this witness that D1 never paid rents. However, it is a fact that Boda
Sriramanarasimham, who was maintaining M/S. Boda Venkataratnam &
Sons, offered and admitted D1 into the partnership in the year 1976. It is the very case of defendants that plaintiff's father Maddimsetty Satyanarayana leased out the suit property to the above said Boda Venkataratnam & Sons for a period of 20 years earlier and again for five years. Hence, it is not his case that as partner of D2, M/S. Gayathri Coastal Agency, he did not pay rents to the plaintiff or his father. It is the very plea of the defendant that subsequent to 1976, Pulletikurthi Venkanna came and raised the dispute and hence, he came to know about the alleged fraud. Hence, in these circumstances, the plea that D1 never paid rent to the plaintiff shall not sustain. He must have paid rents for some time.
20. It is a fact that plaintiff presented a petition before the District
Magistrate with a request not to renew the license to do business. It is the
case of plaintiff that the R.D.O., Aamalapuram summoned these parties and recorded their statements. Ex.A6 is the alleged statement of D1 in the said enquiry. Ex.A7 is the alleged statement of Boda Annapurna Devi. During the course of cross-examination, P.W.1 was suggested that he could obtain those statements with the acquaintance he had with the Revenue Officials.
Thus, it is the case of defendants that Ex.A6 and A7 are the manipulated 17 documents and they are not the statements of D1 and Annapurnadevi. Now, during the cross-examination of D.W.1, he had simply expressed his ignorance about the said enquiry and statements. He stated, “I do not remember whether plaintiff submitted an application to
District Collector against my father alleging that there was no lease and he was not paying rent and as such the license cannot be renewed. I do not know whether the R.D.O., conducted enquiry at the instance of District Collector in respect of the said complaint and recorded the statements. I have not seen the documents under Ex.A6, A7, A14 and A15 relating to the enquiry conducted by RDO. I do not know whether D1 and Annapurna devi participated in the enquiry and gave statements before
R.D.O., as the partners of D2 and their statements are marked as
Ex.A6 and A7 or not.”
21. With the above statement, it is clear that D.W.1 has not denied the truth of Ex.A6 and Ex.A7, but he is only expressing his ignorance about the said fact. Ex.A6 and Ex.A7 are the certified copies of statements recorded by R.D.O., Amalapuram. Plaintiff also filed Ex.A14 and Ex.A15.
Ex.A14 is the petition filed by the plaintiff to the Joint Collector, complaining that neither H.P.C.L., nor D2 was paying rent to him and requested the
Collector not to renew the license. Ex.A15 is the letter from R.D.O.,
Amalapuram dated 26.4.2000 addressed to the District Collector, Kakinada about the fact of his enquiry and the result of his enquiry. The R.D.O.,
Amalapuram opined that Gayathri Coastal Agency(D2) and H.P.C.L., dealer,
Amalapuram (D3) have not been paying rents to the land owner for the last so many years and hence, they may be insisted to produce rent clearance receipts for renewal of the license. These are the documents and with simple allegation that plaintiff obtained those documents in collusion with the revenue officials cannot be accepted. Now from these statements, the stand of D1 is that, he was paying rents to the H.P.C.L., and the said 18 Company in turn was paying rent to Boda Sriramanarasimha and the said
Boda Sriramanarasimha has been paying rents to the plaintiff herein. D1 further stated that, since the H.P.C.L., did not accept the rental request, he could not pay the rent to the plaintiff. It is also stated in this statement that, plaintiff obtained a receipt from him high handedly in the year 1980.
This document must be Ex.A9. Hence, with this statement, it is proved that,
D1 never claimed title to the property and in fact, he is admitting the title of the plaintiff.
22. In Ex.A7 statement of Boda Annapurnadevi, it was stated that, in view of the agreement between plaintiff and D1, the firm alone was liable to pay rents and she was not personally responsible. Ex.A6 is dated 18.1.2000 and Ex.A7 is dated 19.2.2000. Thus, till the year 2000, there was no claim of ownership by D1. Hence, D1 cannot raise the plea of title by adverse possession. To claim title by adverse possession, D1 should have denied the title of plaintiff and the evidence on record discloses that D1 never denied plaintiff's title and on the other hand during the enquiry in the year 2000 also D1 admitted the title of plaintiff. In Darshanam Swamy @
Somaiah Vs. Rithu Malhothra@Rithu Kapur [2008(1)ALT 404(D.B)], it was held, “28. It is not the case of the plaintiffs that they at any point of time claimed title to the property. It is their case that they were tenants under the original owner. After the property was declared as evacuee property, they continued tenancy under the custodian, the property having vested in him by virtue of the acts mentioned above. Assuming without admitting that they have been in possession right from 1936 as pleaded by them, it was only as tenants. They never claimed possession on their own or as the owners of the property. They never denied the title of the real owner. In other words, their possession was never hostile to the real owner, in order to constitute adverse possession, the animus 19 of the person doing those acts is a must crucial factor. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner, he is in adverse possession of it. They never denied the title of the true owner. The possession must be open and hostile enough to be capable of being known to the parties interested in the property. When they asserted that they were tenants, even approached the Courts on the very same ground, and went to an extent of requesting the Government to allot it on after fixing same amount towards consideration, they cannot turn round and say that they acquired the title by way of adverse possession. The plea taken by them is against their own contention. It is a desperate plea in order to acquire the property in one way or the other. The important contention of the plaintiffs is that irrespective of the above they have continued to be in possession and their possession was known to the parties and therefore they acquired title by way of adverse possession.”
23. In The state Bank of Travancore Vs. Arvindan Kuntu
Panicker and others (AIR 1976 SC 996), the Apex Court held, “9. Now coming to the question of adverse possession, there is conclusive evidence to show that the suit property was at all times in the possession of the tenants of the Tharwad referred to earlier. Krishnan Krishnan, Vellu and Kuruvilla at best could have only collected the rent. The evidence in this regard has been discussed in detail by the learned judge of the High Court. It is not necessary to deal with that evidence over again. We accept the conclusion of the learned judge that this suit property was all along in the possession of the tenants. Further Krishnan Krishnan had only a lien over the property for the amount advanced by him his possession of the suit property which in this case is symbolical, must be held to be a permissive possession. The possession of
Vellu and Kuruvilla for the same reason must be held to be permissive possession. A permissive possession cannot be converted into an adverse possession unless it is proved 20 that the person in possession asserted an adverse title to the property to the knowledge of the true owners for a period of twelve years or more. There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property to the knowledge of the true owners at any time before the present suit.”
24. In Premendu Bhusan Mondal vs Sripati Ranjan
Chakravarty(AIR 1976 Cal 55), it was held, “9. The vendors of the plaintiff made an application to the Sub-
Divisional Officer, 24 Parganas for getting back possession of the disputed house from the defendant. In paragraph 12 of the written statement, the defendant has averred that his possession of the disputed house until alternative accommodation under the law, was confirmed by the S. D. O. and the Collector. This shows that the defendant had no animus to set up a claim of right in respect of the disputed house. He was a refugee from East Pakistan and he occupied the disputed house finding the same vacant, There is truth in the plaintiff's case that the defendant assured the vendors of the plaintiff that he would give up possession after he was given alternative accommodation by the Government. A squatter or trespasser, who does not set up a claim of right cannot plead adverse possession and no length of mere squatting possession is a good defence in a suit for possession by the true owner.”
25. It is a fact that plaintiff got sent several petitions to various authorities, including the Revenue Officials and the officials of H.P.C.L.
Plaintiff got sent a legal notice to D1. D1 received the said notice. But he did not respond. Ex.A3 is the copy of legal notice. D1 should have sent a reply notice, denying the title of plaintiff at least on this occasion. Apart from this, as seen from Ex.A24 to 28, D1 used the 21 very sale agreement, marked as Ex.A9 for renewal of license. The documents filed on behalf of defendants also show that taxes are being paid in the name of D2 only but not in the name of D1 personally. There is no document to prove that at any point of time, D1 to the knowledge of plaintiff, denied the title of the plaintiff and claimed title over the property. The electricity service in the name D1 alone and payment of bills by D2 are not sufficient to prove the assertion of title.
D1 or his L.Rs did not try to prove the allegation that D1 purchased the suit property from Pulletikurthi Venkanna. None are examined to prove the said allegation. Hence, the defence of title by adverse possession is a false plea and somehow, D3/HPCL supported this false plea. For all the reasons, the issue is answered in favour of plaintiff and against the defendants.
26. ADDL. ISSUE NO.2:-
Since, it is proved that plaintiff is the landlord and D2 is the tenant, being the agent of D3/HPCL and D1 was sole proprietor for some time and later, he got admitted his son, Pullela Uma
Maheswararao(D5), no others are the necessary parties for effective adjudication of the dispute and hence, the suit is not bad for non- joinder of necessary parties.
27. ISSUES NO.4 TO 7:-
Since, it is proved that plaintiff is the landlord of the suit property and D2 is the tenant and since, it is further proved that D2 did not pay rents as agreed and since, there is no subsisting lease, plaintiff is entitled to vacant possession. As a corollary plaintiff is entitled to damages, future profits, removal of structures. In Bank Of
India vs V. Swaroop Reddy(AIR 2001 AP 260), it was held, 22 “24. In Bhagwan Das v. Union of India, AIR 1961 J & K 39, a
Division Bench of that Court consisting of the Chief Justice and S. Murtaza Fazl Ali, J. said-- "Where the tenant after the expiry of the lease remains in occupation of the premises in spite of the fact that the landlord served a notice on him to vacate and warned him that if he remains in occupation he will have to pay a specified sum as damages for wrongful use and occupation of the building, the defendant-tenant will be liable to pay that amount provided it is not penal and unconscionable." The Supreme Court in State of West Bengal v. B. K. Mondal and Sons, , to put it in our own words, felt that in such circumstances, though there is no contract as is ordinarily understood, the conduct of the parties creates a relationship that arising out of a contract. This is based on the well known principle of avoidance of unjust enrichment on the part of the lessee.”
28. Plaintiff quantified the damages as Rs.7,20,000/-. Plaintiff deposed that the suit schedule property is situated in an important commercial locality. He deposed that the site, situated to the East of the suit property, belongs to his relation and it was leased out to one
Tadi Narasimha Rao for petrol pump business and the monthly rent is
Rs.40,000/-. He also deposed that he had leased out his site and building to UTI Bank on a monthly rent of Rs.22,000/- for the first three years, Rs.25,000/- for the next three years and Rs.30,000/- for last three years. Hence, according to the plaintiff, the suit property fetches
Rs.20,000/- per month and thus, for the three years before filing the suit, he his entitled to Rs.7,20,000/-. Plaintiff did not deny the above quantum of damages. No suggestion is put P.W.1 disputing the rates of rents near and around the suit property. D.W.1 in his cross- examination admitted the fact that Axes Bank and Reliance Petrol
Bunk are situated very nearer to the suit property, but he expressed his ignorance about the rates of rents that are being paid by the said 23 Axes Bank and Reliance Petrol Bunk. Hence, with this evidence, it is proved that Rs.7,20,000/- is a reasonable amount and the plaintiff is entitled to such sum as damages.
29. ISSUE NO.8:-
In view of the findings above plaintiff is entitled for the reliefs as prayed for.
In the result, the suit is decreed with costs, directing the defendants to vacate the premises and handover vacant possession to the plaintiff within three months. The defendants 2, 4 to 8 shall also pay Rs.7,20,000/- with interest thereon at 12% per annum from the date of suit till realisation. There shall be a mandatory injunction against the defendants for removal of structures including underground tanks within the aforesaid three months. Plaintiff is also entitled to mesne profits to be ascertained by a separate application.
Partly dictated to the Personal Assistant and partly typed my be on my personal computer and pronounced in open Court on this the 4th day of March, 2014.
SENIOR CIVIL JUDGE,
AMALAPURAM(FAC).
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For plaintiff:
PW.1::Maddimsetti Muktheswara Rao PW.2::Moram Veerabhadrarao PW.3::Bikkina Raghavendrarao
For defendants:
DW.1::Pullela Umamaheswararao 24
DOCUMENTS MARKED
For plaintiff:
Ex.A1::Registered lease deed dated 26-9-1975. Ex.A2::Representation dated 13-12-1991 to the Senior Regional Manager, HPCL, Visakhapatnam. Ex.A3::Office copy of legal notice dated 1-10-2005. Ex.A4 and A5:: Postal Acknowledgements of D-1 and D-2. Ex.A6:: True copy of the statement of D-1 recorded by the Revenue Divisional Officer, Amalapuram dated 18-1-2000. Ex.A7:: True copy of Statement of Smt.Goda Annapoorna Devi recorded by the Revenue Divisional Officer, Amalapuram dated 10-1-2000. Ex.A8:: True copy of legal notice dated 5-1-1993 issued by Smt. Boda Annapoorna. Ex.A9:: Lease agreement dated 1-10-1980. Ex.A10:: Registration extract of lease deed dated 9-8-1955. Ex.A11:: True copy of proceedings of Tahsildar, Amalapuram dt.17.12.1978 along with true copy of Form No.VIII (Ryotwari Patta). Ex.A12:: Certified copy of extract of register of original petitions. Ex.A13:: Registration extract of sale deed dt.7.9.1985. Ex.A14: Certified copy of Complaint from the plaintiff to the Additional District Magistrate and Joint Collector, Kakinada. Ex.A15:: Certified copy of letter dated 26-4-2000 from R.D.O. Amalapuram to the Collector (C.S.) Kakinada. Ex.A16:: Office copy of notice dt.8-5-1991. Ex.A17:: Postal acknowledgement. Ex.A18:: Returned Postal cover addressed to the plaintiff. Ex.A19:: Legal notice dated 22-4-1991 from HPCL. Ex.A20:: Reply notice dated 30-4-1991 along with postal acknowledgement. Ex.A21:: Registration extract of lease deed dated 16-12-1955. Ex.A22:: Death Certificate of Pulletikurthi Venkanna. Ex.A23:: Covering letter from Civil Supply Office, Kakinada
dated 26-3-2013.
Ex.A24:: Copy of agreement dated 1-10-1980. Ex.A25:: Copy of license dated 23-5-1981. Ex.A26:: Covering letter of Civil Supply Office,Kakinada dated 18-2-2013 and the copy of license dated 23-5-1981. Ex.A27:: True copy of Proceedings of Commissioner of Civil Supplies dated 2-1-1991. Ex.A28: Copy of letter dated 4-3-1997 from HPCL, Visakhapatnam.
For defendants:
Ex.B1:: Registration extract of partition deed dt.3.7.1976. Ex.B2:: Certificate issued by the Village Secretary, Eedarapalli Grama Panchayat dated 2-2-2012. Ex.B3:: Zerox copy of Licence. Ex.B4:: Zerox copy of unregistered parternership deed dated 26-2-1976. Ex.B5:: Zerox copy of No objection-cum-indemnidty certificate Ex.B6:: Electricity bill. Ex.B7:: Electricity bill. Ex.B8:: Electricity E-seva receipt. Ex.B9:: Electricity bill and receipt. Ex.B10::Electricity E-seva receipt.
25 Ex.B11::Electricity bill and receipt. Ex.B12::Electricity bill and receipt. Ex.B13::Electricity bill and receipt. Ex.B14::Electrciity bill and receipt. Ex.B15::Electricity E-seva receipt. Ex.B16::Electrcity E-seva receipt. Ex.B17::Electrcity /E-seva receipt. Ex.B18::Electrciity E-seva receipt. Ex.B19::Tax receipt issued by Grama Panchayat. Ex.B20::Tax receipt issued by Grama Panchayat. Ex.B21::Tax receipt issued by Grama Panchayat. Ex.B22:: Tax receipt issued by Grama Panchayat. Ex.B23:: Tax receipt issued by Grama Panchayat. Ex.B24:: Tax demand notice. Ex.B25:: Demand notice with receipt.
S.C.J.(FAC)
26
IN THE COURT OF SENIOR CIVIL JUDGE :: AMALAPURAM :: E.G.DT:
Present: Sri T.Venkateswarlu, Senior Civil Judge, Kothapeta
FAC. Senior Civil Judge, Amalapuram.
Tuesday, the 4th day of March, 2014.
ORIGINAL SUIT NO.158/2005
Between:
Maddimsetti Mukteswararao, S/o.Satyanarayana, 60 yrs, Hindu, Retd.Bank employee, K.Agraharam,
Amalapuram. ..Plaintiff.
AND 1.Pullella Lakshminarayana (died) 2.M/s.Gayathri Coastal Agencies, Amalapuam rep. By the Managing Parner, Sri Pullella Suryanarayana, 3.Senior Regional Manager, Retail Sales, HPC Ltd., Petroleum Bhavan, Andhra University, Waltair, Opp.Andhra Univeresity.
4.Pullela Subrahmanyam, S/o.Lakshminarayana, 30 yrs, Hindu, business, Edarapalli, Amalapuram.
5.Pullela Umamaheswararao, S/o. S/o.Lakshminarayana, 26 yrs, Hindu, business, Edarapalli, Amalapuram.
6.Pullela Suryanarayana, S/o.Lakshminarayana, 24 yrs, Hindu, business, Edarapalli, Amalapuram.
7.Pullela Venkataranayana, S/o.Lakshminarayana, 22 yrs, Hindu, business, Edarapalli, Amalapuram.
8.Pullela Subbalakhsmi, W/o.Lakshminarayana, 63 yrs, Hindu, business, Edarapalli, Amalapuram.
(D4 to D8 are added as L.Rs of D1 as per orders in
IA No.239/09 dt.23.10.2009. ..Defendants.
This is a suit for eviction, past damages of Rs.7,20,000/-, future damages, for mandatory injunction of removal of constructions including under-ground tanks and for costs.
Plaint presented on 23.11.2005, filed on 15.11.2005.
27 Value of the suit:
1.The damages for use and occupation of schedule property Rs.2,40,000-00 claimed Rs.20,000/- per month, the relief of delivery of vacant possession after evicting the defendants is 2.The amount claimed towards past damages for use and Rs.7,20,000-00 occupation for three years prior to filing of the suit at Rs.2,40,000/- per year comes to 3.The value of manadatory injunction for removal of the Rs. 10,000-00 constructions and structures and tanks underground is valued at TOTAL Rs.9,70,000-00
A court fee of Rs.12,026/- is paid on reliefs 1 and 2 and a court fee of
Rs.786/- is paid on relief No.3 under section 41, 26 {C} of APCF and SV
Act. The total court fee paid is Rs.12,812/-.
Cause of action for the suit arose on 26.9.1975 when Boda
Sriramanarasimham and plaintiff’s father executed registered lease deed to continue the business in the schedule property by which time, Boda
Venkataratnam died and Bora Sriramanarasimham was carrying on business in the schedule premises in the name of M/s.Boda Venkataratnam as agent of
HPCL., in pursuance of lease executed by Boda Venkataratnam and the plaintiff’s father and in December 1975 when Boda Sriramanarasimham intended to discontinue the business and stopped placing indents to HPCL for supply of Petrol and in January 1976 when D1 and Boda Annapuranadevi wanted to enter into partnership and carry on business and started the business placing the orders for supply of stock in the name of M/s.Boda Venkataratnam and on 26.2.1976 the date of partnership deed executed by D1 and Boda Annapurnadevi for carrying business in the name of style of M/s.Gayathri Coastal Agencies in the schedule premises with D1 as working partner and on 1.10.1980 the date of agreement of lease executed by D1 as Managing Partner of D2 and the plaintiff in respect of the schedule property for a period of two years commencing from 1.10.1980 and ending with 30.9.1982 and carried on business in the premises, but failed to cooperate to execute registered lease deed and failed to pay rent and on 13.12.1991 the date of letter written by the plaintiff to Senior Regional Manager of
HPCL, Visakahapatnam informing that himself and D1 on behalf of D2 settled fresh terms of lease and that the period of lease is 10 years commencing from 1.1.1992 and ending with 31.12.2001 and that the monthly rent is Rs.1300/- for the first five years and Rs.1600/- per month for the next five years, D1 accepted the said terms; but D1 as managing partner of D2, did not cooperate for execution of the registered lease deed and failed to pay rent and on 29.12.1999 the date of representation made to the Divisional Magistrate, Amalapuram requesting to refuse renewal of B form license unless valid lease deed is produced and for 28 causing enquiry, submitted to District Magistrate, Kakinada to pass appropriate orders and he issued notice; that on 1.10.2005 issued notice to the defendants demanding delivery of vacant possession and payment of damages for use and occupation, terminating the tenancy if any with effect from 1.11.2005 and the defendants who received the notice did not comply with and at Eedarapalli where the schedule property is situated is within the jurisdiction of this court.
This suit came up before me on 21.1.2014 in the presence of Sri
N.S.Sastry, Advocate for plaintiff and of Sri Pappu Srinivasarao, Advocate for D2 to D6 and D8; D7 remained exparte and having stood over for consideration, this court DOTH ORDER AND DECREE as follows:
1. That the defendants are hereby directed to vacate the premises and hand over vacant possession to
the plaintiff within three months;
2. That the defendants 2, 4 to 8 shall pay a sum of
Rs.7,20,000/-(Rupees seven lakh, twenty thousand only) to the plaintiff, with interest thereon at 12% p.a., from the date of suit till realization;
3. That the defendants are hereby directed to remove the structures including underground tanks by way of mandatory injunction, within three months;
4. That the plaintiff is hereby entitled to mesne profits to be ascertained by a separate application;
5. That the defendants do pay a sum of Rs.12,814/- to the plaintiff towards costs of the suit.
Copy of plaint schedule is hereto annexed.
Given under my hand and seal of this court on this 4th day of March 2014.
SENIOR CIVIL JUDGE,
AMALAPURAM(FAC)
Particulars of costs.
For plaintiff: For defendants:
(Since no costs memo filed, Institutional costs are only taxed) Stamp on vakalat ..Rs. 2-00 No costs memo filed. Stamp on plaint ..Rs.12,812-00 -------------------- TOTAL ..Rs.12,814-00
--------------------- SCJ(FAC)
29