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Andhra Pradesh High Court
Judges : L.NARSIMHA REDDY
Nandam Mohanamma - Appellant
Versus
Markonda Narasimha Rao - Respondent
Decided On : 07-27-05
Transfer of Property Act – Section 106 – A. P. Buildings (Lease, rent and Eviction) Control Act, 1960 – Indian Evidence Act – Sections 91, 92 – Civil Procedure Code – Order 6 Rule 4, Section 2 – Recovery of possession – Liability – Written contract – Oral evidence – Written agreement – Fraud – Misrepresentation – Nature of property – Respondents filed suit for relief of recovery of possession of suit schedule property, on basis of termination of lease, and for damages for use and occupation of suit schedule property, upto date of suit – It was pleaded that open land of 149 sq. yards, situated in Ward and described in suit schedule, was leased to husband of first appellant and father of appellants 2 and 3, initially, in year, for a period of ten years, and thereafter, in year for another spell often years – It was alleged that appellants did not vacate premises, even after expiry of lease, and as such, a notice dated was issued under Section 106 of Transfer of Property Act, terminating lease – They pleaded that they are entitled for relief of recovery of possession of land, as well as damages for use and occupation of same – Held, Once it had emerged that it was only a land, at commencement of lease, fact that lessee had put up a shed, that too, with specific understanding that it does not alter nature of subject-matter; relations between parties do not get altered – If contention of appellants is to be accepted, easiest thing for lessee of a land, to perpetuate his possession, on it, would be, to put a shed on his own accord and claim benefit under Act – That was never object or intention, under Act, and submission of appellants, in this regard, cannot be accepted – At any rate, Courts below recorded concurrent findings of fact, as to nature of property – This Court does not find any basis to interfere with same – Appeal is Dismissed
( 2 ) THE respondents filed the suit for the relief of recovery of possession of suit schedule property, on the basis of termination of the lease, and for damages for use and occupation of the suit schedule property, upto the date of the suit. It was pleaded that the open land of 149 sq. yards, situated in Ward No. 10, and described in the suit schedule, was leased to Sri Hemasundara Rao, the husband of the first appellant and father of appellants 2 and 3, initially, in the year 1968, for a period of ten years, and thereafter, in the year 1978 for another spell often years. It was alleged that the appellants did not vacate the premises, even after the expiry of the lease, and as such, a notice dated 5. 3. 1988, was issued under Section 106 of the Transfer of Property Act, terminating the lease. They pleaded that they are entitled for the relief of recovery of possession of the land, as well as damages for use and occupation of the same.
( 3 ) APPELLANTS resisted the suit. They did not dispute the ownership of the respondents. It was, however, pleaded that the subject-matter of the lease was a shed, existing as on the date of commencement of the lease, and the rent was less than rs. 1,000/-, and in that view of the matter, the suit is not maintainable. It was alleged that during the life time of Hemasundara rao, the property was agreed to be sold, for a consideration of Rs. 60,000/-, and a sum of Rs. 5,000/- was paid, as advance.
( 4 ) THE trial Court found that the provisions of the A. P. Buildings (Lease, rent and Eviction) Control Act, 1960 (for short "the Act") do not apply to the premises in question, and that the quit notice, marked as Ex. A-3, is in accordance with law. Consequently, it decreed the suit and ordered eviction of the appellants. The mesne profits were awarded at the rate of rs. 350/- per month. Aggrieved by the decree, the appellants filed A. S. No. 107 of 1996, in the Court of Second Additional district Judge, East Godavari at Rajahmundry. The appeal was dismissed on 13. 8. 2001. Hence, this second appeal.
( 5 ) SRI C. Ramachandra Raju, learned counsel for the appellants, submits that there is clinching evidence on record, to disclose that by the time the lease was granted initially in the year 1968, or at least by the time it was granted for the second spell of ten years in the year 1978, there existed a structure over the said land, and in that view of the matter, the suit ought to have been dismissed, as not maintainable. He contends that the property was referred to as vacant land in the lease deeds, only with a view to avoid protection under the act, to the appellants and their predecessor, and that the same cannot be countenanced in law. He submits that the Courts below ignored vital evidence and treated the suit schedule premises, as though it is a land, and that the decree deserves to be set aside.
( 6 ) SRI D. V. S. Sitharam Murthy, learned Counsel for the respondents, on the other hand, submits that there is a clear recital in the lease deeds, executed in the years 1968 and 1978, to the effect that the leased property is a vacant land, and as such, it is impermissible for the appellants to contend otherwise. He submits that when the terms of the lease were reduced into writing, the documents were registered, and it is imperrrissible for the appellants to lead any oral evidence, contrary to the terms contained in such deeds. He further submits that even otherwise, the portion of the oral evidence relied upon by the appellants, needs to be understood, in the context of the recitals of the lease deeds, which enabled the lessee to put an improvised shed on the open land, with a clear understanding that it shall be removed at his own cost, while vacating the premises.
( 7 ) THE second appeal arises out of concurrent judgments of the trial Court and lower appellate Court.
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