Sri Venkateswara Oil Company Vs. Guduru Jalaja Reddy and ors. - Court Judgment

C.Y. Somayajulu, J.

1. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the trial Court.

2. Appellants are Defendants 1 to 3 in O.S. No. 46 of 1977 on the file of the Court of the Subordinate Judge, Tirupati, filed by G. Chenga Reddy (plaintiff) after whose death his legal representatives were brought on record. Plaintiff in the first instance filed the suit against appellants (defendants 1 to 3) and his son Gudur Paradesi (4th defendant) for recovery of possession of the plaint schedule land, (suit land), and for profits, past and fixture, alleging that defendants 1 to 4, who are partners of Venkateswara Oil Company (the firm) took the suit land on lease on a monthly rent of Rs.750/- and had committed default in payment of rent. 3rd defendant filed his written statement, which was adopted by defendants 1 and 2, denying the title of plaintiff and also tenancy, and contending that he and defendants 1, 2 and 4 took the suit land on lease from Sura Venkat Reddy (5th defendant). 4th defendant remained ex parte. After his being added as 5th defendant, 5th defendant filed written statement claiming title to the suit land. Plaintiffs examined four witnesses as P.Ws. 1 to 4 and marked Exs. A1 to A51. On behalf of defendants 1 to 3, D.Ws. 1 and 2 were examined and Exs. B1 to B54 and Exs.Xl and X2 were marked through witnesses. The evidence of P.Ws.1 was eschewed because he did not go into the witness box after being examined in chief in part. P. W.2is the 4th defendant i.e., son of plaintiff. P.Ws.3 and 4 are independent witnesses. D.Ws.1 and 2 are defendants 3 and 2 respectively. The trial Court having held that the plaintiff failed to establish the lease, decreed the suit for possession and profits on the ground that plaintiff has better title than defendants 1 to 4 and dismissed the suit against defendants 5 to 7 as no relief was claimed against them. A learned single Judge of this Court dismissed A.S.No.2144 of 1987 preferred by defendants 1 to 3 against the decree of the trial Court. Hence this L.P.A., by defendants 1 to3.

3. When the appeal came up before a Bench consisting of P. Venkata Rama Reddy, J., and one among us (R.M.B. J.,), findings from the trial Court as to whether the defendants 1 to 3 and 5 perfected their title to the suit land by adverse possession, and if the rights of Atchamma mother of plaintiff) and plaintiff over the suit land got extinguished, were called for. On the basis thereof the trial Court issued notices to the parties. No further evidence was adduced by the parties before the trial Court. The trial Court, after considering the rival contentions, recorded the findings in favour of the plaintiff on the above two points. Thereafter the matter came up for hearing before us.

4. The main contention of Mr. Venkata Ramana, learned counsel for defendants I to 3, is that in a suit for ejectment of a tenant by a landlord, if the landlord fails to establish the tenancy set up by him, he would not be entitled to a decree for possession against the defendant on the basis of his title. It is his contention that since the trial Court and the learned single Judge concurrently found that the plaintiff failed to establish the tenancy set up by him, decree for possession on the basis of title cannot be passed in favour of the plaintiff. It is his contention that the findings of the trial Court and the learned singleJudge on the issues framed are beyond the scope of the suit, and since the suit against 5th defendant, who became the owner of the suit land by virtue of Ex.B3, was dismissed and since it is the contention of defendants 1 to 3 that they took the suit land on lease from 5th defendant, plaintiff cannot be allowed to seek any relief against defendants 1 to 3. He relied on BRAHMA NAND v. NEKI PURI, : [1965]2SCR233 , BHAGWARI v. CHANDRAMAUL, : [1966]2SCR286 ; BIBT REHANA KHATUN v. IQTIDAR UDDIN HASAN, AIR (30) 1943 All. 184 and SITA RAM v. RADHA BAI, : [1968]1SCR805 , in support of his contentions.

5. The contention of Mr. N. Subba Reddy, learned Senior Counsel for the plaintiff is that since the trial Court and the learned single Judge concurrently held that EX.A1 was acted upon by the parties, and since there is no evidence on record to show that Atchamma, the mother of plaintiff, or the plaintiff were dispossessed from the suit land, and since the parties, having known that title to the suit land is in dispute, adduced evidence in that regard, in view of the ratio in PONNIA PILLAI v. PANNAI, AIR (34) 1947 Mad. 282 and JAGAMOHAN GARNAIK AND ORS. v. SANKAR SAMAL AND ORS., : AIR1990Ori124 , there are no grounds to interfere with the decree for possession passed in favour of the plaintiff.

6. The relationship between the parties to the suit is admitted. Krishna Reddy is the eldest brother of Narasimha Reddy, and Venkat Reddy (5th defendant). Atchamma (mother of the plaintiff) is their sister. Defendants 1 to 3 are the sons of Narasimha Reddy. Krishna Reddy took 3 acres 87 cents of land in S.No.150 (of which the suit land is a part) on permanent lease from P.V.Narasimha Charyulu, under a registered lease deed dated 27-4-1937 (Ex.B2). After the death of Krishna Reddy, NarasimhaReddy (father of defendants 1 to 3), being the eldest coparcener, became entitled to that lease by survivorship. After his death, Venkat Reddy (5th defendant) became entitled to the lease. Subsequently, in 1956, there was a partition of the properties belonging to the family between the sons of Krishna Reddy, i.e., Govind Reddy and Srinivasulu Reddy; sons of Narasimha Reddy i.e., Govinda Reddy, defendants 1 to 3 and Muninatha Reddy, (being minor, represented by eldest brother Govinda Reddy); 5th defendant and Atchamma, (mother of plaintiff), as per EX.A1. Though existence of EX.A1 is admitted by them, defendants 1 to 3, who also are parties thereto, contend that EX.A1 was never acted upon. 'D' schedule to EX.A1, which contains the details of the properties allotted to Atchamma, shows that the suit land was allotted to her share. Both the trial Court and the learned single Judge, after considering the evidence on record in extenso, and having regard to the fact that Ex.A28 sale deed executed by 5th defendant on 3-3-1969, also makes a reference to EX.A1, and the fact that Exs.A27 and A31 statements of defendants 1 to 3 and 5 and Ex.A3 sale deed executed by Srinivasulu Reddy, S/o Krishna Reddy make a reference to Ex.A1, negatived the contention of defendants 1 to 3 that A1 partition deed was not acted upon. We find no grounds to interfere with the said finding. In view of Ex.A1 it is clear that the suit land, along with other properties, was allotted to the share of Atchamma during partition between her, defendants 1 to 3, 5 and others. Plaintiff as son of Atchamma, became entitled to the suit land and other properties after the death of Atchamma.

7. Mr. Venkata Ramana strongly contended that since the trial Court and the learned single Judge held that the lease set up by the plaintiff is not established and since there is no evidence to show that Atchamma was cultivating the suit land, andpaying her share of rent in respect of the suit land to the original landlord, and since Ex.B2. (lease deed) contemplates the demised land being used only for purpose of cultivation and for no other purpose, and since 5th defendant, under Ex.B3, purchased the entire extent of land in S.No.150, which includes the suit land, and leased out the suit land to defendants 1 to 3, who have been in possession thereof for over 12 years prior to the date of filing of suit, by constructing a Petrol Bunk and carrying on business, which is not an agricultural purpose, the title, if any, of Atchamma and the plaintiff to the suit property stood extinguished by their adverse possession. It is no doubt true that both the trial Court and the learned single Judge have held that the plaintiff failed to establish the lease. After having gone through the evidence on record, we find that both the trial Court and the learned single Judge have not properly appreciated the evidence of PW.3 and D.W.1 on the question of lease. The evidence of PW.3, who admittedly was an employee of the firm in which defendants 1 to 4 were partners, is that the entries in the account books of the firm reveal payment of rent in respect of the suit land to Atchamma, and that the firm was submitting income tax returns. It is not the case of DW.1 that the firm was not submitting the income tax returns. In the cross-examination on behalf of defendants 1 to 3 he (P.W.3) clearly stated-

'I have written payment of lease amount to Atchamma in the accounts of the petrol bunk from 1966 onwards. The account books were checked by the Income Tax Department Officers. Vouchers were collected from Atchamma.'

Even in his chief examination as DW.1, 3rd defendant admitted that PW.3 was employed in the petrol bunk from 1967 till 1977. Defendants 1 to 4 admittedly were partners in the firm which is carrying on business inthe suit properly. The firm is bound to maintain accounts. It is not the case of defendants 1 to 3 that they are not submitting income tax returns on behalf of the firm. Since they along with others are carrying on business in petrol as partners of a firm, if not in their individual capacity, defendants 1 to 3, as partners of the firm which is carrying on the business, must be submitting income tax and sales tax returns on behalf of the firm. It is the case of defendants 1 to 3 that the firm took the suit land on lease from the 5th defendant but not Atchamma. It is not the case of defendants 1 to 3 that they took the suit land on lease in their individual capacity. When the lease of the suit land, admittedly, is on behalf of the firm only, and if rent is being paid to 5th defendant in respect of the suit land as stated by 3rd defendant in his evidence as DW.1, account books of the firm, in which defendants 1 to 4 were partners, would divulge the name of the landlord to whom rent in respect of the suit land was being paid.

8. Defendants 1 to 3 who are in possession of best evidence i.e., account books, failed to produce the same into Court. The accounts of the firm, if produced would have thrown considerable light on the main issue in controversy i.e., whether Atchamma or 5th defendant is the landlord of the firm in which defendants 1 to 4 were partners in respect of the suit land. The Supreme Court in GOPAL KRISHNAJI KETKAR v. MOHAMMED HAJI LATIF AND ORS., : [1968]3SCR862 , referring to the observation of the Privy Council in MURUGESAM PILLAI v. GNANA SAMBANDHA PANDARA SANNADHI, AIR 1917 PC 6 at p.8, reading :

'A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts thebest material for its decision. With regard to third parties, this may be right enough - they have no responsibility for the conduct of the suit, but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition'.

held that if a party in possession of best evidence which throws light on the issue in controversy withholds it, the Court ought to draw an adverse inference against him notwithstanding the fact that onus of proof does not lie on him or because he was not called upon to produce it, by relying on the abstract doctrine of onus of proof. In view of the above position of law, adverse inference ought to be drawn against defendants 1 to 3 for their withholding the best evidence available with them. Instead of doing so, and holding that due to non-production of accounts of the firm, an inference of lease can be drawn, the trial Court and the learned single Judge, erroneously held that plaintiff failed to establish the lease. Any way since the finding on lease is not challenged by the plaintiff in the appeal or this L.P.A., we do not want to disturb the said finding, though it appears to be an incorrect finding.

9. In Ponnia Pillai case (supra), a Division Bench of the Madras High Court, relying on BALA MUKUND v. DALU, (03) 25 All. 498 (FB), held that in a suit filed on the basis of tenancy in which defendant denies the title of plaintiff and sets up adverse possession, even if issue relating to title is not framed, if evidence is adduced fully by both sides on the question of title, a decree based on the plaintiffs title can be given against the defendant even if the plaintiff fails to establish the tenancy setup by him. The Supreme Court in Bhagwati Prasad case (supra) by referring to Bala Mukund case (supra), observed that it is undesirable and inexpedient to lay down any general rule in respect of such a situation and held that if Court is satisfied that the ground on which reliance is placed by one or other of the parties was, in substance, at issue between them, and both of them have had opportunity to lead evidence at the trial, the formal requirement of pleadings can be relaxed. Therefore it is clear that the Supreme Court impliedly agreed with the ratio laid down in Ponnia Pillai (5 supra) that decree for possession on the basis of title can be passed in a suit filed on the ground of tenancy with a rider that both parties should have known that the title to the property is being adjudicated, and must have had an opportunity to lead evidence on the question relating to title. In this case both parties adduced evidence on the question of title, knowing that the Court is adjudicating on the question relating to title also. In fact, as stated earlier, a Division Bench in this very same appeal, directed the trial Court to submit findings on the question of title of plaintiff and adverse possession by defendants 1 to 3 and 5. The report of the trial Court shows that though an opportunity was given to them, parties did not adduce further evidence, and only arguments were addressed by the learned counsel for the parties on those points. So, it cannot be said that the defendants 1 to 3 had no opportunity to adduce evidence on title or knowledge that title is being decided in this case, though the suit is filed on the basis of tenancy. In the circumstances of the case, the trial Court and the learned single Judge finding on the question of title in favour of the plaintiff cannot be found fault with.

10. We are therefore unable to agree with the contention of Mr. Venkata Ramana that in a case where plaintiff seeks ejectment of defendant on the ground oftenancy, if defendant denies tenancy and sets up title in a third party or himself or pleads adverse possession no decree for possession on the basis of title can be passed. Such decree can be passed even in the absence of pleadings and issue, if parties adduce evidence at length in regard to title also, with knowledge that title to the property would be adjudicated by Court.

11. Except the IPSI DIXIT of 3rd defendant as DW. 1, there is no other evidence on record to show that the firm consisting of defendants 1 to 4 took the suit land on lease from the 5 defendant. So the version of defendant 1 to 3 that 5th defendant is the landlord of the firm cannot be believed or accepted. By virtue of Ex.B3, 5th defendant stepped into the shoes of his vendor and became the lessor of the legal representatives of the lessee under Ex.B2 and his successor lessees. Since under Ex.A1, 5th defendant also was allotted share in the land purchased by him under Ex.B3, in respect of that part of the land which was allotted to him under Ex.A1 there is a merger of interest of the landlord and tenant, and so he ceases to be the tenant in respect that portion of the land allotted to his share under Ex.A1. But in respect of the remaining land purchased by him under Ex.B3, including the suit land, he can only claim rent as per Ex.B3 and cannot, by virtue of Ex.B3, dispossess other successor under lessees Ex.B2 read with Ex.A1. If there is any breach of terms of lease he can take steps as per law, for recovery of possession etc. This is not a suit filed by 5th defendant for recovery of possession on the basis of his title or on the basis of breach of tenns of Ex.B2 lease. In fact 5th defendant did not go into the witness box. Therefore, his pleas in his written statement can have no value because pleadings are not evidence. Facts have to be established by evidence.

12. Plaintiff as successor of Atchamma, is entitled to all the rights she had in the suitland, as lessee. Since there is no reliable evidence on record to show that after purchase by the 5th defendant under Ex.B3, the suit land was let out by him to the firm in which defendants 1 to 4 are partners after dispossessing Atchamma and since as per Ex.A.1, read with Ex.B2, Atchamma has a right to continue in possession as lessee of suit land, plaintiff who stepped into the shoes of Atchamma after her death has better right and title to the suit land than defendants 1 to 3. Admittedly, 4th defendant, the son of plaintiff., is a partner of the firm with defendants 1 to 3. In view of the relationship, if not lease, licence in favour of the firm, in which defendants 1 to 4 are partners, can be implied or inferred. This is so because defendants 1 to 3 do not claim possession over suit land independently, and claim possession only as partners of a firm in which 4th defendant also is a partner, 4th defendant is supporting the plaintiff. Therefore, possession of defendants 1 to 3 over the suit land is, and can only be, permissive, but not adverse to plaintiff. For this reason also the ultimate findings on the points referred to the trial Court by the earlier Division Bench, cannot be held to be erroneous. Hence decree for possession and profits passed in favour of the plaintiff needs no interference.

13. The other decisions relied on by the learned counsel have no application to the facts of this case and hence we are not referring to them in detail.

14. For the foregoing reasons, we do not find any grounds to interfere with the judgment of the learned single Judge under appeal and hence the appeal is dismissed with costs.