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Judgment
M.N. Rao, J.—This appeal by the unsuccessful plaintiffs in the suit is directed against the judgment and decree of a learned single Judge of this Court in A.S.No. 820 of 1978 dated 9-2-1984 by which the judgment and decree of the learned Subordinate Judge, Vizianagaram, in O.S.No. 53 of 1975 dated 26-9-1978 was reversed. The suit was instituted by the appellants-plaintiffs for recovery of vacant possession of the plaint schedule premises, G-33, Prince of Wales Market, Vizianagaram after removing the structures thereon, and for mesne profits in a sum of Rs. 15,966-67 ps. for the period from 1-1-1970 to 26-4-1975 at the rate of Rs. 250/- per month with interest thereon at 6% from 26-4-1975 and for determination of future mesne profits from the date of filing of the suit i.e., 26-4-1975 till the date of delivery of possession. The appellants-plaintiffs are three in number. The 1st plaintiff is a partnership firm. The 2nd plaintiff at the relevant time is a minor, represented by the 3rd plaintiff, his natural father and guardian.
In brief it was averred in the plaint that the 3rd plaintiff was the original owner of the plaint schedule premises and by a registered sale deed dated 30-1-1972 a portion of the premises was sold in favour of the 2nd plaintiff and the other portion was relinquished by him in favour of the 2nd plaintiff by a registered deed of relinquishment dated 31-1-1972. The 2nd plaintiff although minor was admitted to the benefits of the 1st plaintiff-partnership firm on 1-10-1972 and the plaint schedule property therefore vests in the 1st appellants-1st plaintiff. The respondent-defendant had taken on rent, the plaint schedule premises - Rs. 40/- towards rent and Rs. 40/- towards licence fee, aggregating Rs. 80/- per month for a period of three years under a registered lease deed, Ex.A-4 dated 31-3-1966 from 1-4-1966 to 31-3-1969 the tenancy being from month to month and the rent payable by the 3rd of every succeeding month. One of the terms of the lease deed, Ex.A-4 is that on the expiry of the three years period, the respondent-defendant should vacate the plaint schedule premises without notice by removing the structures thereon. The respondent-defendant paid rents only upto 31-12-1969 and defaulted in remitting rents for the subsequent period. The quit notice, Ex.A-5 dated 13-3-1969 was got issued by the appellants-plaintiffs calling upon the respondent-defendant to vacate the plaint schedule premises with effect from 1-4-1969. The suit O.S.No. 53 of 1975 itself was instituted in the year 1975 as prior to that there were rent control proceedings - before the Rent Control Court, it appears an application was filed by the respondent-defendant seeking permission of the Rent Controller to deposit the arrears of rent. But that application was rejected on the ground that the Court had no jurisdiction since what was demised under Ex. A-4 was only a vacant site. Resisting the suit, it was pleaded by the respondent-defendant that the 3rd appellant-3rd plaintiff was not the real owner but only a trustee and the P.W.Market was constructed by the Rajas of Vizianagaram for the benefits of the people of Vizianagaram and therefore, the 3rd appellant-3rd plaintiff had no right to alienate the property in favour of anybody. He also averred that the 1st appellant-1st plaintiff-firm is a non-existing one without transacting any business and therefore any conveyance of property in favour of such a non-existing firm is null and void. The further plea raised by him was that he became the tenant holding over since the rents paid by him upto 1969 have been accepted without raising any objection and therefore in the absence of fresh notice to quit, the suit was not maintainable.
On the pleadings, as many as 17 issues were framed by the learned trial Judge and the suit was decreed as prayed for holding inter alia that the 1st appellant-1st plaintiff-firm is a genuine one and as per the lease deed Ex.A-4 when the lease expired by 31-3-1969, the respondent-defendant is bound to vacate and hand over possession to the appellants-plaintiffs without any quit notice. The further finding recorded by the learned trial Judge is that there was nothing to suggest that the 3rd plaintiff has given his consent to the respondent-defenant to continue in possession of the property either expressly or impliedly and therefore the respondent-defendant cannot complain that he is a tenant holding over. Aggrieved by the judgment and decree of the learned brial Judge, the respondent-defendant carried the matter in appeal to this Court in A.S.No. 820 of 1978 which, as already stated, was allowed by the learned single Judge of this Court.
Although several contentions were raised in the first appeal, arguments were confined only to three points viz., (1) whether the defendant is a tenant holding over after the expiry of the lease period; (2) whether a quit notice is necessary on the part of the plaintiffs to terminate the lease between the plaintiffs and the defendant; and (3) whether the plaintiffs are entitled to possession and mesne profits as prayed for ? Since the rents were accepted for, the period subsequent to the quit notice, Ex.A-5 by the appellants-plaintiffs the: learned single Judge of this Court held that the respondent-defendant became the tenant holding over and therefore he could not be evicted from the promises until a fresh quit notice was issued u/s 106 of the Transfer of Property Act and as there was no such notice the suit for eviction must be dismissed. In view of the findings the relief for mesne profits was negatived.
Before us Sri K.V. Subrahmanya Narsu, learned counsel for the appellants-plaintiffs has contended that mere acceptance of rents by the appellants-plaintiffs after issuing the quit notice, Ex. A-5 would not enable the respondent-defendant to claim the status of tenant holding over. Even assuming that the respondent-defendant became the tenant holding over, he is estopped from questioning the title of the appellants-plaintiffs. Controverting these contentions, Sri G. Ramachandra Rao, learned counsel for the respondent-defendant, has urged that there is nothing in the evidence to suggest that the appellants-plaintiffs have resorted to any acts leading to the inference that they did not want to treat the tenancy subsisting. The mere fact that the respondent-defendant denied the title of the 3rd appellant-3rd plaintiff it would not entitle the appellants-plaintiffs to get the decree for eviction.
Under the lease deed Ex.A-4, the demised premises was leased out for a period of three years with effect from 1-4-1966 to 31-3-1969. It is not in dispute that Ex.A-5 quit notice dated 13-3-1969 was received by the respondent-defendant. It is also not in dispute that the rents for the period from April, 1969 to December, 1969 were tendered by the respondent-defendant and received by the appellants-plaintiffs. On behalf of the appellants-plaintiffs, P.W.1 Clerk of the 3rd appellant 3rd plaintiff gave evidence. He did not say anything that the acceptance of the rents was without prejudice to the claim of the appellants-plaintiffs to seek eviction of the respondent-defendant.
The ruling in P. Lakshmanchandji v. V.V.S.R. Murthy 1976 (2) An.W.R. 110 relied upon by the learned counsel for the appellants-plaintiff is of no assistance to them. In that case interpreting Section 113 of the Transfer of Property Act and Illustration (a) to it, Alladi Kuppuswami, J. as he then was after reviewng the case law on the subject held:
"Reading the illustration together with the main part of the section it will follow that even the acceptance of the rent subsequent to the notice would operate as a waiver only if it shows an intention to treat the lease as subsisting."
In that case while accepting the rents for the period subsequent to the quit notice, receipts were issued with endrosement "without prejudice," which clearly indicate that the intention of the lessor not to treat the lease as subsisting. In the case on hand no such receipts were issued and no evidence was brought on record to show that the appellants-plaintiffs were not treating the lease as subsisting after the issuance of quit notice by accepting the rents for the period between April, 1969 and December, 1969. The conduct of the appellants-plaintiffs in accepting the rents tendered by the respondent-defendant for the period subsequent to the quit notice without any reservations clearly leads to the inference that they were treating the lease as subsisting and therefore it must be held that they waived the notice and accordingly we agree with the view of the learned single Judge that the respondent-defendant became a tenant holding over and so a fresh quit notice is a mandatory requirement.
As regards the application of principle of estoppel, Sri Subrahmanya Narsu vehemently advanced arguments. We are of the considered view that in the particular circumstances of this case it has no application. The trial Court''s finding that the 1st appellant-1st plaintiff-firm became the owner has not been disputed in the first appeal and so that finding became final the binding. Even before us no objection whatever was raised about the ownership of the 1st appellant-1st plaintiff-firm. The lease agreement, Ex.A-4 was between the 3rd appellant -3rd plaintiff and the respondent-defendant. When it is the case of the appellants-plaintiffs that the 1st appellant- 1st plaintiff-firm became the owner on 1-10-1972 it was their bounden duty to serve a notice to quit on the respondent-defendant. For this the contention of the learned counsel for the appellants-plaintiffs is that such a plea was not taken by the respondent-defendant in his written statement. What the learned counsel says is true, it is also equally true that it is for the appellants-plaintiffs to prove what they have pleaded - the pleading is grounded on the footing that the 1st appellant-1st plaintiff became the owner of the plaint schedule premises and therefore is entitled to seek eviction. Failure to apprise the respondent-defendant about the change of ownership and absence of attornment of tenancy disable the appellants-plaintiffs from successfully claiming eviction of the respondent-defendant. The inconsistent plea taken by the respondent-defendant in his written statement will not have the effect of the appellants-plaintiffs getting the decree in the absence of there being no evidence at any point of time prior to the suit that the respondent-defendant was informed about the change of ownership of the plaint schedule premises.
The Division Bench judgment of this Court in Bokka Sreeramulu Vs. Kalipatnapu Venkateswar Rao and Another, relied upon by Sri Subrahmanya Narsu has no application to the instant case.
Inasmuch as there is no dispute about the ownership of the plaint schedule premises, the respondent-defendant is bound to pay the admitted arrears of rent- at the rate of Rs. 80/- per month made up of Rs. 40/- towards rent and Rs. 40/- towards licence fee to the 1st appellant - 1st plaintiff, whose power of attorney, we are told, is Shri P.V.G. Raju. As the liability to pay the rents is not in dispute, we direct that within six months from to-day the respondent-defendant shall pay the entire arrears of rent to the 3rd appellant-3rd plaintiff.
Subject to the above directions, the appeal is dismissed. We, however, make no order as to costs.