HUSSAIN BEGUM Vs. M RANGA RAO

JUDGEMENT

(1.) These appeals arise out of a common judgment and decree dated 30th November, 1979 passed by the learned Second Additional Subordinate Judge, Vijayawada in O.S. No.135 of 1970 and 119 of 1972. A.S. No.1439 of 1980 is the appeal preferred against the judgment in O.S. No.135 of 1970. Tr. A.S. No.2140 of 1993 had been referred against the judgment and decree in O.S. No.ll9of 1972 before the District Court, Machilipatnam and was transferred to this Court subsequently. Since the parties are common and as common questions of law and fact are involved in both the appeals they can be disposed of together. FACTUAL MATRIX:

(2.) The deceased first plaintiff and the second plaintiff were husband and wife. The father of the first plaintiff by name Ali Hussain was one of the Mokhasadars of the Jagir Machavaram situate in Vijayawada. There was a suit for partition among the co- sharers of that Mokhasa. Ultimately in the final decree passed in LA. No.365 of 1991 in O.S. No.37 of 1940 an extent of 360 Sq. yards of site fell to the share of one Naffijunisa Begum, and 240 Sq. yards of site fell to the share of the father of the first plaintiff. Second plaintiff purchased 360 Sq. yards of site from the said Naffijunnisa Begum in the year 1955 under a registered sale deed. After the death of late Ali Hussain, the first plaintiff being the sole heir became entitled to the 240 Sq. yards of site. Thus the plaintiffs 1 and 2 became joint owners of the total extent of 660 Sq. Yds. of site described in the schedule annexed to the plaint (for short the 'suit property')- The father of the first defendant by name Mereedu Kotaiah and the second defendant took on lease a portion of the suit property in an extent of 210 Sq. yards along with the shed thereon for their coffee hotel business for a period of three years on an yearly rent of Rs.160/- under a lease deed dated 1-6-1955. The Defendants promised to vacate the suit property by 31-5-1958. After the expiry of the period of lease they requested for a renewal of lease for a further period of three years, and in that process they took on lease the remaining 400 Sq. yards of site of the plaintiffs also promising to enhance the rent, but the rent was not settled between the parties. In the meanwhile, the plaintiffs borrowed some money from the lessees under promissory notes executed by them in the name of the 3rd defendant, wife of the second defendant and one Katuri Krishnavenamma, a relation of the 2nd Defendant, with an understanding that the rents payable over the suit property should be adjusted towards the repayment of the debt. The defendants failed to adjust the same, nor did they settle the lease amount. Subsequently, the father of the 1st defendant died and in his place the first defendant was in occupation of the suit property. Contrary to the understanding, suits were filed against the plaintiffs on the foot of the said promissory notes. Therefore, the plaintiffs got issued a lawyer's notice dated 11-6-1965 to the defendants 1 and 2. The 2nd defendant having received the same on 12-6-1965 kept quiet. The plaintiffs again on 11-11-1967 got another lawyer's notice issued to the defendants 1 and 2 and also to Katuri Krishnavenamma. Only third defendant got a belated reply notice dated 22-5-1968 issued through her advocate. Hence, the suit for declaration of the plaintiffs' title and for possession of the suit property and also for profits.

(3.) The plea of the 2nd defendant, who is the only contesting defendant is that he occupied the suit property in the year 1947 and was carrying on hotel business in the suit property since then and this was to the knowledge of the plaintiffs and therefore the title even if any in favour of the plaintiffs has been extinguished as he has been there over the suit property for more than the statutory period. The 2nd defendant denied any lease as pleaded by the plaintiff along with the 1st defendant while denying all other material averments made in the plaint.