J LAKSHMIKANTHA RAO Vs. M B CHANDER

JUDGEMENT

(1.) plaintiff is the appellantthis appeal arises out of a suit filed by the plaintiff for eviction of the tenant and for recovery of possession. It is stated by the plaintiff that the house bearing m.c.h. No. 12-2-828/a/14, situated at amba garden colony, mehidipatnam, hyderabad was constructed in the year 1978. The defendant agreed to take the suit house on a monthly rent of Rs. 500/- and the tenancy was from month to month. The tenancy agreement was oral and the agreement was entered into in the second week of July, 1978 and the tenancy was to commence from 1st August, 1978. The rent was agreed to be paid in advance in each month. The defendant was inducted into possession of the suit house on 15-7-1978 and at the end of July, 1978 paid the rent of rs 250/- and for the month of August, 1978 the defendant paid the rent in the first week of August, 1978 and thus the monthly tenancy commenced from month to month. In spite of the issuance of the notice, the defendant did not choose to vacate the suit house and as such the plaintiff is obliged to file the suit. Originally the plea of the defendant is that the tenancy is oral and it was for a period of 5 years and not from month to month as alleged. The rent for the occupation of the building is payable in advance on 7th of every english calender month. The tenancy is for $ period of 5 years from the date of acoupation of the premises, i.e., from 15-7-1978 to 15-7-1982. It is stated that for keeping the rental account clear and to avoid further confusion a sum of Rs. 250/-was paid in the month of July 8, for a period of 15 days in that month and an amount of Rs. 500/- was paid towards the rent of August, 78 in advance and every month the rent was being paid in advance as agreed orally and the payment of rentals on first of every month is no proof that the tenancy agreed to was a month to month tenancy and not a five year tenancy. During the course of trial the defendant filed an application being i-a. 459/83 for amendment of the written statement and permission for amendment was granted. Thereafter the defendant filed an amended written statement on 25-4-1983 stating that the notice to quit issued on 8-7-1980 terminating the tenancy by the end of July, 1980 is bad and defective as the tenancy is from 15th to 15th of a month. The trial court framed appropriate issues and decreed the suit on the ground that though the tenant was inducted on 15-7-1978 it is a monthly tenancy, in view of the conduct of the parties and also in view of the evidence of the plaintiff as p.w. 1 and the defendant as d.w. 1. On appeal at the instance of the defendant the lower appellate court arrived at the conclusion that the tenancy has to be considered as from 15th July to the 15th of the next month and as such the notice to quit is not proper.

(2.) the learned counsel for the appellant Sri J.V.Suryanarayana Rao contended that there is overwhelming evidence in support of the plea of the plaintiff that the tenancy is month to month and the finding of the lower appellate court that the tenancy is from 15th to 15th is devoid of any material or basis or evidence and in any event notwithstanding the induction of the tenant on 15-7-1978 the subsequent payment of rent from month to month clearly discloses that this is a monthly tenancy. Learned counsel for the respondent seeking to sustain the judgment of the lower appellate court contended that the induction of the tenant on 15-7-1978 is the starting point for the commencement of the tenancy and the question of altering the period of tenancy does not arise depending upon the payment of rent subsequently.

(3.) the initial step taken by the plaintiff for recovery of possession is by issuance of notice dated 8-7-1980. Tn the notice it is categorically stated that the defendant occupied the house on 15-7-1978 and at the end of July, 1978 the defendant paid the rent of Rs. 250/- and for the month of August. 1978 the rent of Rs. 500/- was paid in the first week of August, 78 and thus the monthly tenancy was continued from month to month. On the basis of monthly tenancy it is said that the tenancy is terminated bv the end July, 1980. Tn reply to this notice the defendant sent a notice, dated 22-7-1980 wherein it is stated that the plaintiff received rent of may and June in the first week of June, 80 and the rent of July month in advance was received as usual on 7th July, 80 and the tenancy was for a period of 5 years as agreed initially and not from month to month as alleged. In the original written statement it is stated that with a view to avoid confusion a sum of Rs. 250/- was paid in the month of July 78 for a period of 15 days in the month and an amount of Rs. 500/- was paid