N. Sitadevi and Others Vs. A. Berata and Others - Court Judgment

Excerpt:
civil - second appeal - section 114 of code of civil procedure, 1908 - findings as to acquisition of title by adverse possession by defendant recorded by appellant court - no pleading made by defendant claiming adverse possession - no issue framed on question of adverse possession - recording of facts held to be unjustified by high court in second appeal - review petition against high court's decision - high court in review petition observed that comprehensive original suit for both declaration of title and injunction filed by plaintiff - question whether plaintiff lost title to property due to adverse possession by defendant - question within jurisdiction of court in second appeal - held, findings of facts regarding question justified. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.order1. heard the learned counsel for the petitioners-appellants. no representation for the respondents. 2. the review petitioners seek review of the judgment and decree dated 3-3-2000 in sa no.520 of 1989 passed by this court. the brief facts leading to the filing of this petition may be stated as follows: the petitioners herein are the plaintiffs in the suit. they filed the suit os no. 160 of 1979 on the file of learned subordinate judge, warangal for the reliefs of declaration of title in respect of the suit property and for consequential perpetual injunction. the trial court recorded a finding that the plaintiffs have made out a case of their title and also held that the plaintiffs were in possession of the suit property and on this ground, the reliefs of declaration of title and consequential perpetual injunction restraining the defendants from interfering with the possession of the suit property were granted. the defendants challenged the judgment and decree of the trial court in the first appeal in as no.41 of 1986 on the file of learned additional district judge, warangal. learned additional district judge allowed the appeal and set aside the judgment and decree of the trial court on the findings recorded by him that the defendants have succeeded in making out a case of their acquisition of title to the suit property by adverse possession. obviously,on this ground, the suit of the plaintiffs was dismissed. 3. in the second appeal before this court, the judgment and decree of the first appellant court have been challenged on various grounds. the substantial question of law, on which the second appeal was admitted, was that the first appellant court has erred in recording a finding as to the acquisition of title by the defendants by adverse possession in the absence of any pleading in that behalf and in the absence of framing of any issue on that question. 4. it is, therefore obvious that the question before this court was as to the correctness or otherwise of the finding recorded by the first appellate court that the defendants had made out a case of acquisition of title by adverse possession. learned judge, who heard the second appeal, held that part of the findings of the first appellate court that the defendants have been in possession of the suit property as on the date of the suit was justified on the basis of the evidence before the court. but the learned judge refused to go into the question whether the possession was adverse to the plaintiffs; and whether it was sufficient to record finding of acquisition of title by defendants on the basis of adverse possession. this refusal to go into the question was apparently on the assumption that the suit was essentially a suit for injunction and that the question whether the defendants acquired title by adverse possession and thereby the title of the plaintiffs had extinguished was not considered necessary to be decided. on this basis, the learned judge also observed that these questions viz., the fact of the defendants having acquired title by adverse possession; and the question whether the plaintiffs title was thereby extinguished were left open to be agitated in a separate proceedings by the plaintiffs, if so advised.it is pertinent to mention here that the suit cannot be said to be essentially for the relief of injunction only. the suit was for declaration of title also as it is clear from the prayer in the plaint. the plaintiffs having filed a comprehensive suit for declaration of title and perpetual injunction, they ought not to have been driven to file a separate suit for declaration of title. this assumption of the learned judge that the suit was essentially for the relief of perpetual injunction and not for declaration of title must be deemed to be an error apparent on the face of the record, inasmuch as such an assumption is contrary to the pleadings. in view of this, this must be deemed as a sufficient ground for allowing the review petition. 5. in view of what has been stated above, this petition is allowed. the second appeal shall be restored to file and posted for hearing before the court hearing second appeals.

Judgment:
ORDER

1. Heard the learned Counsel for the petitioners-appellants. No representation for the respondents.

2. The review petitioners seek review of the judgment and decree dated 3-3-2000 in SA No.520 of 1989 passed by this Court. The brief facts leading to the filing of this petition may be stated as follows:

The petitioners herein are the plaintiffs in the suit. They filed the suit OS No. 160 of 1979 on the file of learned Subordinate Judge, Warangal for the reliefs of declaration of title in respect of the suit property and for consequential perpetual injunction. The trial Court recorded a finding that the plaintiffs have made out a case of their title and also held that the plaintiffs were in possession of the suit property and on this ground, the reliefs of declaration of title and consequential perpetual injunction restraining the defendants from interfering with the possession of the suit property were granted. The defendants challenged the judgment and decree of the trial Court in the first appeal in AS No.41 of 1986 on the file of learned Additional District Judge, Warangal. Learned Additional District Judge allowed the appeal and set aside the judgment and decree of the trial Court on the findings recorded by him that the defendants have succeeded in making out a case of their acquisition of title to the suit property by adverse possession. Obviously,on this ground, the suit of the plaintiffs was dismissed.

3. In the second appeal before this Court, the judgment and decree of the first appellant Court have been challenged on various grounds. The substantial question of law, on which the second appeal was admitted, was that the first appellant Court has erred in recording a finding as to the acquisition of title by the defendants by adverse possession in the absence of any pleading in that behalf and in the absence of framing of any issue on that question.

4. It is, therefore obvious that the question before this Court was as to the correctness or otherwise of the finding recorded by the first appellate Court that the defendants had made out a case of acquisition of title by adverse possession. Learned Judge, who heard the second appeal, held that part of the findings of the first appellate Court that the defendants have been in possession of the suit property as on the date of the suit was justified on the basis of the evidence before the Court. But the learned Judge refused to go into the question whether the possession was adverse to the plaintiffs; and whether it was sufficient to record finding of acquisition of title by defendants on the basis of adverse possession. This refusal to go into the question was apparently on the assumption that the suit was essentially a suit for injunction and that the question whether the defendants acquired title by adverse possession and thereby the title of the plaintiffs had extinguished was not considered necessary to be decided. On this basis, the learned Judge also observed that these questions viz., the fact of the defendants having acquired title by adverse possession; and the question whether the plaintiffs title was thereby extinguished were left open to be agitated in a separate proceedings by the plaintiffs, if so advised.It is pertinent to mention here that the suit cannot be said to be essentially for the relief of injunction only. The suit was for declaration of title also as it is clear from the prayer in the plaint. The plaintiffs having filed a comprehensive suit for declaration of title and perpetual injunction, they ought not to have been driven to file a separate suit for declaration of title. This assumption of the learned Judge that the suit was essentially for the relief of perpetual injunction and not for declaration of title must be deemed to be an error apparent on the face of the record, inasmuch as such an assumption is contrary to the pleadings. In view of this, this must be deemed as a sufficient ground for allowing the review petition.

5. In view of what has been stated above, this petition is allowed. The second appeal shall be restored to file and posted for hearing before the Court hearing second appeals.