A DEVENDER Vs. K CHANDRAKALA

JUDGEMENT

(1.) The judgment of the leamed Additonal Chief Judge, City Civil Court, Hyderabad in AS.No.260 of 1988 dated 12-3-1992 is in challenge in this appeal. That appeal wasagainst the judgment and decree of the learned 5th Assistant Judge, City Civil Court, Hyderabad in O.S.No.3043 of 1983, dated 16-9-1988. The appellant is Defendant No. 4 and a legal representative of Defendant No. 1 in the suit. The respondent is the Plaintiff in the suit. The suit was filed for recovery of possession of the suit premises described as a piece of land admeasuring 5 x 7 Ft. by the side of the gate of the house of the plaintiff bearing No.1-1-261/22 situated at Chikkadpally, Hyderabad. The demised premises was let out in the year 1970 under an oral agreement on a monthly rent of Rs.75/-permensum. DefendantNo. 1 installed a dabba in the demised premises and carrying on the business of photo frame works. The Plaintiff pleaded that the suit demise being a piece of land by the side of the gate of the house, it would not be building within the meaning of Ae provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (in short'the Act'), she issued quit notice to the defendant under Section 106 of the Transfer of Property Act on 27-6-1982 and terminated his tenancy and called upon him to deliver the possession to her immediatery on the expiry of the month of July, 1982. It was alleged that in spite of the quit notice, defendant No. 1 did not vacate the premises and thereby, he made his possession unauthorised from 1-8-1982 and therefore, the plaintiff was entitled to claim mesne profits at the rate of Rs.200/-permensum, which comes toRs.2734/-from 1-8-1982 tp21-9-1983 viz., till the date of filing of the suit. It appears that DefendantNo. 1 filed RC.No.344of 1982on the file of the 1st Additional Rent Controller, Hyderabad and paid Rs. 1575/- towards the rent which the plaintiff received under protest and without prejudice, he paid arrears of rent from 1-1-1982 to 31-7-1982 and mesne profits payable from 1-8-1982 to 7-1-1983 and therefore, as a whole, it was alleged that DefendantNo. 1 was liable to pay Rs. 1687/- as on the date of the suit which he did not pay and therefore, this suit was filed for recovery of possession and mesne profits. The Defendant No. 1 admitting that he is the tenant in the demised premises contended that initially the rent was only Rs. 30/- permensum and it went on in creasing gradually to Rs.75/- permensum, the premises let out was a tin-shed rested on two right and left side walls by the side of the gate of the house without the back and front walls, he had to put up a big wooden dabba under the tin-shed for safety purpose and it is a building within the meaning of the Act and therefore, the Court had no jurisdiction to entertain the suit in view of the protection on eviction of the tenants except in accordance with the provisions of the Act The validity of the quit notice was challenged on the ground that it did not conform to the mandatory provisions of Section 106 of the Transfer of Property Act andhe also denied that he is liable to pay the mesne profits as claimed. However, he had to file the petition in RC.No.344 of 1982 proposing to deposit the rent since the plaintiff refused to receive the rent from the month of February, 1982. The plaintiff received thee ntire amount deposited. DefendantNo. 1 sought for the dismissal of the suit with costs. These issues were settled:-

(2.) In this appeal, the concurrent findings of the Courts below on all questions are challenged. Mr. Sri ramakrishnamoorthy, learned Advocate for the appellant has raised the following questions of law in the form of contentions, which according to him are wrongly decided by the Courts below, for this Court to interfere with the findings and the decisions of the Courts below viz.,(1).The demised premises let out to DefendantNo. 1 did not come within the definition of 'building' under Section2, sub- clause (iii) of the Act and therefore, the Courts below had no jurisdiction to deal with the suit for dispossessing the 1st defendant, who is admittedly the tenant in the demised premises in view of Section 10 of the Act, wherein absolute protection for the evictionof the tenants under the Act is provided, (2). The quit notice issued to DefendantNo. 1 on the face of it being illegal and notin accordance with Section 106 of the Transfer of Property Act cannot confer the jurisdiction on the trial Court to pass an order for dispossessing the tenant defendant No. 1 from the demised premises and both the Courts below have committed aserious error of law in accepting the validity of the quit notice and (3). The judgment and the decree of the Courts below suffer from patent illegalities both on facts and law warranting interference by this Court in the Second Appeal.

(3.) Mr. Dilipkumar Shirodkar, learned Advocate for the respondent has contended that having due regard to the clear stand of Defendant No. 1 and the clear evidence in the case, what was let out to Defendant No. 1 was only an open site and it not having been let out along with the main building would not come within thedefinitionof 'building' under Section 2, sub-clause (iii) in view of sub-clause (a) to Section 2(iii) of the Act and therefore, he would not get the protection from eviction under Section 10 of the Act. He further contended that the quit notice is on the face of it valid because of the nature of the tenancy being monthly one and having been terminated to end with the tenancy month viz., the end of the calendar month. There was no question of want of jurisdiction for the Courts below to pass such an order. According to him, the findings on such questions are based on facts and thus, the findings on facts although leading to the in ference of law may not warrant interference by this Court in the Second Appeal.