BOKKA SREERAMULU Vs. KALIPATNAPU VENKATESWAR RAO

JUDGEMENT

(1.) This second appeal raises two questions of law. While one of them relates to the maintainability of this appeal the other turns upon the true interpretation of Section 116 of the Indian Evidence Act, As on the latter question, some conflict of authority is said to exist in the decisions in Venkatanarasimha Charyulu v. Gangaraju, 1941-1 Mad LJ 554 : (AIR 1941 Mad 607) (A), and Kuppukonan v. Thirugnana Sammandam, ILR 31 Mad 461 (B), which is followed in Muthusamy Aiyar v. Solai Konan, 26 Mad LJ 597 : (AIR 1915 Mad 48 (1) (C), this appeal has been on reference placed before us for disposal.

(2.) To appreciate the points involved, a brief statement of facts is necessary. Admittedly, the appellant took on lease the suit land measuring Ac. 12.00 from 1st respondent for one year on 1-8-1950 Ex. A-1 evidencing this transaction contains a clear admission that the lessor had full title to and was in possession and enjoyment of the land in question. It contains a stipulation to the effect that respondent No. 1 may take back possession of the land without need for a registered notice to the lessee at the end of the lease period i.e., 31-5-1961. There are further terms as to cultivation and payment of makta etc., which need not be detailed here.As the defendant had cultivated dalwa on seedbed land in violation of the terms of the lease, plaintiff-1st respondents case is that he leased out the land for the succeeding year to 2nd plaintiff (2nd respondent) and by a notice in writing demanded buck from the defendant possession of the land and also the dalwa makta (for the year) which was yet unpaid. The respondent then paid about half of the dalwa makta but denied in his reply notice the title of the plaintiff to the extent of half the suit land. This necessitated an action in ejectment and for recovery of arrears of makta.The defendant in his defence to this suit set up right, title and interest of one Krishnamurthy, the paternal uncle of the plaintiff in the eastern half of the suit land and averred that the plaintiff had leased out the land not only in his own right but also on behalf of his paternal uncle, that on demand of the latter he, the defendant, paid half the makta of dalwa to him though prior to that he had paid the sarva makta to the plaintiff alone, that the payment to Krishnamurthy operated as full discharge of his liability, that the plaintiff and Krishnamurthy had on 2-5-1951 before the actual expiry of the previous lease period, leased out to him separately their specified half shares of the land for a further period of one year, that the lease in favour of 2nd plaintiff is a farce and that the plaintiff is entitled to no relief.The plaintiff pleaded estoppel in the defence set up and denied that he had leased out the land for subsequent year to the defendant. The trial Judge on enquiry found that Krishnamurthy on partition in 1945 got only Ac. 3.00 of land but even that was allowed to be continued in possession of the plaintiff for a period of 12 years in discharge of his debt with the result that the plaintiff continued to be in exclusive possession of the suit land to the knowledge of the defendant and that he leased out the same to the defendant as before in his own right and not on behalf of Krishnamurthy to any extent and that the defendants own averments in the lease deed and other documents belie his story.He also held that the plea of the defendant was barred by the principle embodied in Section 116 of the Evidence Act. He further round that the contention that the plaintiff had executed lease of his share in the land in favour of the defendant for the subsequent year is untrue and that the payment, if any, to Krishnamurthy not being made at the instance of the plaintiff did not discharge the defendants liability for the dalwa makta due from him. Thus he repelled the contentions of the defendant and granted a decree for the arrears of rent and also possession of Ac. 6.00 land which was still in possession of the defendant.After this decree the defendant gave back possession of the land but preferred an appeal against the decree for arrears of rent. The learned Subordinate Judge dismissed the appeal on the ground that Section 116 of the Indian Evidence Act did apply to the case, that it was not open for the defendant to have denied the title in the suit unless and until he had surrendered his possession, that it was therefore not necessary for the trial Court to enquire into and decide the question of title and further that there was no discharge of liability by payment to Krishnamurthy.

(3.) With such concurrent judgments against him, tbe defendant has come up in Second Appeal to this Court. A preliminary objection has however been taken by the respondent as to the maintainability of this appeal, but this should not detain us longer. No doubt, the value of this appeal is less than its. 500/- and the appeal before us now is only against the arrears of rent but it is the nature of the suit and not of appeal that is material for purposes of Section 102, C. P. C. It is the character of the suit as it was originally framed and presented to the Court and not which it may assume in the course of or after the trial by virtue of the findings of the Court or in the appeal that may eventually be brought that determines the nature of the suit for purposes of Section 102, C.P.C.We see that neither the suit nor the grounds taken in appeal fall within the prohibited sphere of Sections 100 to 102 C.P.C. The plea as to Lion-maintainability is therefore wholly devoid of force.It is also argued that since the decree for arrears of rent appealed against is based on the same right as that for possession and that since the defendant did not appeal against the decree for possession in the lower appellate Court, but on the contrary delivered possession. of the property, thereby admitting the right of the plaintiff, he cannot now bring a second appeal to this Court. This plea is not well-founded. The Code is exhaustive of the rights of Second Appeal and unless a particular case falls within the prohibited domain, the right will remain unaffected.Under Section 100 C.P.C. an appeal shall lie to this Court from every decree passed by the Subordinate Court in appeal provided the grounds all or any stated in that section exist and this jurisdiction of this Court knows no limitations save those as have been in terms imposed by the Code or by any law for the time being in force. In the absence of such limitations, it follows that this appeal is quite competent.It is also clear that execution of a decree in part or in full, whether through Court or otherwise, does not affect the right of appeal nor the fact that only a separable portion of the decree was appealed against in the lower appellate Court can be a bar to an appeal to this Court. Inasmuch as this is an appeal against the decree passed by the lower appellate Court, it is competent under Section 100 C.P.C.