ANNAPUREDDY RANDAVA SAMBAIAH Vs. ANNAPUREDDY KOTAMMA AND ORS.

JUDGEMENT

(1.) THE unsuccessful plaintiff preferred this second appeal assailing the decree and judgment dated 2.4.2013 of the learned District Judge, Guntur made in AS No. 231 of 2012 whereby the learned District Judge while dismissing the said appeal had confirmed the decree and judgment dated 6.6.2012 of the learned I Additional Senior Civil Judge, Guntur made in OS No. 593 of 2009 filed for eviction of the defendants from the plaint schedule property and for delivery of the vacant possession of the same to the plaintiff and for recovery of arrears of rents till the date of eviction. (a). At the time of admission of this second appeal, this Court had taken note of the substantial questions of law raised in grounds A and B in the memorandum of grounds of appeal. The said substantial questions of law read as under : -'The view taken by lower appellate Court of landlord and tenant cannot be converted into a suit for title and recovery of possession since there is no factual foundation for such claim and apart from that plaintiff claimed arrears of rent is erroneous in law and in fact as the factual foundation was laid in Para III -A of the plaint and even otherwise appellant/plaintiff being the paternal grandson of late Venkatamma, who is the original owner of the suit schedule property and in view of the fact that appellant's father Tirupathaih predeceased his mother, succeeded to the estate of late Venkatamma under the provisions of the Hindu Succession Act being Class -I heir and this factual position is admitted by all and as such the view of the learned District Judge is clearly perverse to the core. (B) The learned Judge below lost sight of the fact that any suit would be laid in a competent civil Court under Section 26 of CPC which is a 'procedural law'. Transfer of Property Act and Specific Relief Act are the substantive laws which create rights and duties, which may or may not have provided forum and the question of filing suit under T.P. Act and not filing the same under Specific Relief Act as observed by learned Judge below does not arise." [Reproduced verbatim]

(2.) (a). To adjudicate the lis and answer the substantial questions of law, it is necessary to mention, in brief, the history of the case. The plaintiff had filed the suit against the defendants for eviction of the defendants and for recovery of possession of the plaint schedule property and for arrears of rents and also for grant of future mesne profits and other reliefs. In the suit, the plaintiff had inter alia urged as under : "One Annapureddy Venkatamma is the paternal grandmother of the plaintiff. She had purchased an extent of 212 4/9 square yards in 4th lane, Gunturivari Thota, Guntur under a registered sale deed dated 21.4.1966, a copy of which is exhibited as Exhibit Al. One Tirupathaiah is her son. She had died on 25.4.1969 and her said son died on 15.8.1965. The said Tirupathaiah had four sons namely Annapureddy Pedda Samabaiah, plaintiff, Annapureddy Moddava Sambaiah and Annapureddy Papaiah. As the son of the said Venkatamma predeceased her, the plaintiff and his brothers being the paternal grandsons of Venkatamma had succeeded to her estate on her demise as per the Hindu Law of Succession. A partition was affected between the plaintiff and his three brothers and the properties were orally partitioned amongst them. In the said partition, the plaint schedule property fell to the share of the plaintiff. The plaintiff and his brothers had executed a registered partition deed dated 22.12.2004 under Exhibit A8. The plaintiff and his brothers are in possession and enjoyment of their respective shares. The possession and ownership in respect of the share of the plaintiff also stands established from the judgment in OS No. 502 of 2001 on the file of the Court of the learned I Additional Junior Civil Judge, Guntur. The certified copies of the judgment and decree in the said suit are Exhibits A4 and A5. The 1st defendant and one Annapureddy Papa Rao are sister and brother. The 2nd and 3rd defendants are the daughter and son of Papa Rao. The defendants who are thus closely related inter se are also related to the plaintiff. The 1st defendant about 7 years prior to the suit had obtained the schedule property from the plaintiff on an oral lease having agreed to pay the rent at the rate of Rs. 500/ - per month. The rent of every month is payable on the first day of the month. Thus the 1st defendant is a month to month tenant. Subsequently, the rent was enhanced to Rs. 700/ - in the year 2000. Again the rent was enhanced to Rs. 850/ -per month in the year 2001. Finally, the rent was enhanced to Rs. 1,100/ - in the year 2003 by mutual consent. The 1st defendant is living in the plaint schedule property along with the 2nd and 3rd defendants. While so, the 1st defendant did not pay the rents since one year prior to the suit and had committed wilful defaults in payments of rents. Further the plaintiff was in need of the plaint schedule property for his personal occupation. In spite of repeated demands, the 1st defendant did not either pay the arrears of rents or vacate the property. Hence the plaintiff having got issued a registered legal notice dated 5.2.2005 had terminated the lease with effect from 1.3.2005 and requested the 1st defendant to vacate the property and handover vacant peaceful possession of the same and pay the arrears of rent. The office copy of the said notice is Exhibit A9. There was no reply from the defendants. Hence the plaintiff is constrained to file the suit."

(3.) NOW before this Court, though in fact the suit of the plaintiff is one for recovery of possession based on the jural relationship of landlord and tenant between the parties and the said relationship could not be proved, the plaintiff wants his said suit to be decreed on the ground that the 1st defendant had failed to prove the Will pleaded in the defence and that the relationship of the parties and the title of the plaintiff to the plaint schedule property is admitted and established. Therefore, in a sense the plaintiff canvasses that the plaintiff is entitled to a decree for recovery of possession of the plaint schedule property from the defendants on the basis of title even though the relationship of the landlord and tenant as pleaded in the plaint is not established. The learned Counsel for the plaintiff forcefully contended that the suit that was filed by the plaintiff against the 1st defendant and her family members for recovery of possession on the foundation that the 1st defendant is a tenant in the plaint schedule property can be treated as a suit for recovery of possession in the absence of proof of the jural relationship of landlord and tenant and that the suit can be decreed treating the suit as one for recovery of possession since the title of the plaintiff as traced in the plaint is admitted and established and as the unregistered Will relied upon by the defendants in the defence of the defendants is held not proved. In other words, the plaintiff is requesting the Court to convert the suit filed against the tenant/1st defendant for eviction and recovery of possession into a suit for recovery of possession based on title/ paramount title and grant the relief of recovery of possession. Keeping in view the facts, the evidence on record and also the contentions and rival contentions and the legal position, this Court is of the well considered view that the plaintiff is not entitled to make a request to this Court to treat the instant suit of the plaintiff as one for recovery of possession based on title and grant the relief for the following among other reasons.