IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M. Seetharama Murti, J.
Dr. M. Buchi Babu - Appellant
Versus
Rafia Sulthana and others - Respondents
Second Appeal No. 23 of 2016
Decided on : 18-03-2016
Tenant and Land Law – Code of Civil Procedure, 1908 – Section 100 – Second Appeal – Tenant – Trial Court had also granted a decree directing the plaintiff to deposit arrears of rent till he delivers vacant possession of the plaint schedule property to the defendants – Additional District Judge while dismissing the above said first appeal suit of the plaintiff had confirmed the judgment and decree dated 30.08.2013 of the trial Court. Hence, the unsuccessful plaintiff/tenant has preferred this second appeal – Father of the defendants is owner of the plaint schedule mulgi – Said Abedin died three years prior to institution of instant suit – Suit schedule property was let out to the plaintiff in the year 1994 on a nominal rent of Rs.200/- per month by said Abedin – Thereafter rent was enhanced from time to time – Monthly rent, as on the date of the institution of the suit, is Rs.1,000/-. rent was enhanced to Rs.1,000/- per month about one year prior to suit – Plaintiff has been running his medical practise in the schedule premises under the name and style of Anil Kumar Clinic – On death of defendants, with an ulterior motive and to cause hardship to plaintiff, had started causing impediments to his peaceful possession and enjoyment of the property and had failed to receive the rent which is to be paid in the 1st week of January 2012. The demand draft offered towards the said rent was refused by the defendants and hence, the plaintiff had sent same by registered post to the 3rd defendant. In furtherance of their nefarious intention, the defendants, along with their henchmen, came to plaint schedule property and tried to forcefully dispossess plaintiff and had damaged the premises – Held, findings of facts recorded by the courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the said concurrent findings do not require to be upset. Further, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction by this court as per Section 100 of the Code. The questions raised strictly speaking are not even questions of law let alone substantial questions of law – None of questions raised are substantial questions and that there is no substance in the questions raised and that therefore, the second appeal is devoid of merit and is liable for dismissal at the stage of admission – Law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved – View of this court is reinforced by the ratio in the decision in Gurudev Kaur v. Kaki (AIR 2006 SC 1975) – In the case on hand, as this court finds, after careful examination of the pleadings, the evidence and the contentions, that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission in view of the narrow compass of Section 100 of the Code of Civil Procedure – Appeal is dismissed. (Paras 13 and 14)
M. Seetharama Murti, J.
This second appeal under Section 100 of the Code of Civil Procedure, 1908 by the unsuccessful plaintiff is directed against the judgment and decree dated 12.11.2015 of the leaned VII Additional District Judge, Khammam passed in AS. no.90 of 2013.
1.1 The appellant/plaintiff filed the suit OS.No.41 of 2012 on the file of the Court of the learned Principal Junior Civil Judge, Khammam for a perpetual injunction restraining the defendants 1 to 3 from interfering with his possession over the mulgi bearing H.no.9-2-141/7 situated at Bus stand road of Khammam more fully described in the schedule annexed to the plaint. The first defendant filed a written statement-cum-counter claim seeking the relief of recovery of possession of the said property after evicting the plaintiff/tenant from the said property, besides the reliefs of recovery of arrears of rent and mesne profits. On merits, the trial Court had dismissed the suit of the plaintiff for perpetual injunction and had decreed the counter claim of the 1st defendant and directed the plaintiff to vacate and handover the plaint schedule property to the defendants within 3 months from the date of the judgment and had given liberty to the defendants to obtain possession through process of Court on the failure of the plaintiff to so vacate and deliver possession to the defendants. The trial Court had also granted a decree directing the plaintiff to deposit arrears of rent at Rs.1,795/- per month from February 2012 till he delivers vacant possession of the plaint schedule property to the defendants. The learned Additional District Judge while dismissing the above said first appeal suit of the plaintiff had confirmed the judgment and decree dated 30.08.2013 of the trial Court. Hence, the unsuccessful plaintiff/tenant has preferred this second appeal.
2. I have heard the submissions of the learned counsel for the appellant/plaintiff ('the plaintiff', for brevity) and the learned counsel for the respondents/defendants 1 & 3 ('the defendants', for brevity). I have perused the material record.
3. The plaint averments, in brief, are as follows:
"The father of the defendants by name Zainul Abedin is the owner of the plaint schedule mulgi. The said Abedin died three years prior to the institution of the instant suit. The suit schedule property was let out to the plaintiff in the year 1994 on a nominal rent of Rs.200/- per month by the said Abedin. Thereafter the rent was enhanced from time to time. The monthly rent, as on the date of the institution of the suit, is Rs.1,000/-. The rent was enhanced to Rs.1,000/- per month about one year prior to the suit. The plaintiff has been running his medical practise in the schedule premises under the name and style of 'Anil Kumar Clinic'. He used to pay the rents to the said landlord till his death. Thereafter he is paying the rents to the 3rd defendant at the instance of all the defendants. There are no defaults in payments of rents. He is in peaceful possession and enjoyment of the plaint schedule property without any interference or interruption from any quarter.
On the death of Zainul Abedin, the defendants, with an ulterior motive and to cause hardship to the plaintiff, had started causing impediments to his peaceful possession and enjoyment of the property and had failed to receive the rent of Rs.1,000/- payable for the month of January 2012, which is to be paid in the 1st week of January 2012. The demand draft offered towards the said rent was refused by the defendants and hence, the plaintiff had sent the same by registered post to the 3rd defendant. In furtherance of their nefarious intention, the defendants, along with their henchmen, came to the plaint schedule property on 18.01.2012 and tried to forcefully dispossess the plaintiff and had damaged the premises. The plaintiff, with the intervention of the neighbours, could resist, with great difficulty, the illegal actions of the defendants and their men. While leaving
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