SA/580/2010 of M/s.Manish Foot Wear, Vs Mohd. Sirajudin Khalid, on 31 December 2010

:Oral Judgment

Heard both sides.

2. This second appeal is directed against thejudgment and decree dated 29-4-2010 in A.S.No.250 of2009 passed by the II Additional District Judge,Vijayawada, Krishna district, allowing in part the judgmentand decree dated 17-9-2009 in O.S.No.1181 of 2007passed by the Principal Junior Civil Judge, Vijayawadaconfirming the eviction of the defendant from the plaint schedule premises while rejecting the claim of damages.

3. The appellant herein is the defendant-tenant andthe respondent is the plaintiff-landlord in the suit beforethe trial Court.

4. The plaintiff filed the suit for eviction of thedefendant-tenant from the plaint schedule premises afterissuing a Notice on 24-3-2007 under Section 106 of theTransfer of Property Act, 1882. Learned counsel for theplaintiff tried to make out something in favour of theplaintiff but that is not necessary for this Court to placeheavy reliance on.

5. What has been pointed out specifically as asubstantial question of law by the learned counsel for thedefendant is that the plaintiff, who has been claiming asthe owner of the plaint schedule property by virtue of ahiba (gift) Ex.A-1, which was an unregistered andinsufficiently stamped document.

6. It is his contention that when the said documentwas sought to be marked, the same was allowed by thetrial Court and the defendant approached this Court byway of a revision C.R.P.No.3954 of 2008. In the saidrevision, the plaintiff appears to have informed this Courtthat he would not rely on the said document, inasmuch as,there was a better evidence available on record in order toprove that he had title over the suit schedule property.

7. Therefore, the suit was tried and basing on theother evidence on record, which has been adduced byboth the parties, de horse the original document that wassought to be relied on in order to prove the ownership, thetrial Court passed the decree in favour of the plaintiff andthe same had been confirmed by the lower appellateCourt after appreciating the evidence on record.

8. From the above, what appears is -- the documentwhich was sought to be relied on by the plaintiff waswithdrawn from the record in order to prove ownershipover the suit schedule property and independentevidence had been adduced de horse the said documentand therefore, the trial Court had to consider the evidenceon record and accordingly considered the whole materialon record, both oral and documentary, and decreed thesuit.

9. The lower appellate Court also had confirmed thejudgment and decree of the trial Court on merits and forthe said reason, the ground that is being urged before thisCourt by the defendant cannot be treated any longer as asubstantial question of law.

10. Furthermore, the basic thing that cannot beignored is -- the defendant is not denying the status as atenant and if he pleads ignorance about his owner andparticularly when he is not pointing out as to who was hisowner, the ground that is being raised in the present appeal cannot be taken into account and the plea of thetenant, in such a case, particularly when he is not able toprove the owner other than the plaintiff.

11. Further, when the ownership of the plaintiff overthe suit schedule premises is accepted by both the Courtsbelow basing on the evidence on record and thedefendant is admittedly being a tenant, it is highlyinexpedient for this Court to interfere with the remainingfacts or questions of law, which have been dealt with onall aspects, including the present question.

12. No other substantial question of law is involved,hence the second appeal is devoid of any merit andaccordingly the same is liable to be dismissed.

13. In the result, the second appeal is dismissed,confirming the judgment under appeal.

14. However, having regard to the facts andcircumstances, particularly in view of the fact that thedefendant-tenant is carrying out some business in theplaint schedule premises, I feel it expedient to direct him tovacate the same on or before the 09[th] January, 2011 andhe shall give an undertaking before the trial Court to thateffect.

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JUSTICE D.S.R.VARMA

09[th] July, 2010.Ak

THE HON’BLE SRI JUSTICE D.S.R.VARMA

Second Appeal No.580 of 2010

09[th] July, 2010.(Ak)