Narsingh Singh vs Smt. Urmila Bai

B.K. Somasekhara, J.—This is a defendant''s appeal. The respondent is the plaintiff in O.S.No. 246 of 1982 on the file of Additional Chief Judge, City Civil Court, Hyderabad. The judgment and decree of the learned Judge dated 15-1-1983 are challenged in this appeal. The convenience warrants the reference of the parties as the plaintiff and the defendant. The plaintiff claiming to be the landlady of the defendant in regard to the suit property filed the suit for possession and for recovery of the arrears of rent amounting to Rs. 8,700-00 and also for compensation for use and occupation at Rs. 300-00 per mensem from the date of the suit till the date of delivery of possession. The suit property should be styled as demised premises in the nature of the; suit and it is described as a plot of land measuring about 2,869 Sq, yards in Ward No. 14, Block No. 8, situate at Seethamata Temple, Kanika Adda,. Dhoolpet, Hyderabad. The defendant resisted the suit.

The plaintiff is the wife of one Laxmi Narayan Singh. She claimed that the demised premises belong to her having purchased it from one Gannu Singh under registered sale deed dated 10-7-1970 for a valuable consideration of Rs. 12,000-00. She claims that she and her husband were, in possession of the same. Her husband and defendant were on cordial terms and under the circumstances the premises was leased out to the defendant by her husband at a rental of Rs. 300-00 per mensem with effect from 1-9-1970 under an oral lease. She alleged that defendant paid the rental till 1-8-1975 i.e., till the death of her husband, namely, on 26-8-1975 and since then he stopped the payment of rent. When he failed to pay the rent as alleged, she demanded him to pay the rent, got a notice issued to him through her Advocate dated 17-9-1977, his tenancy was terminated by issuing the notice with effect from 1-10-1977, and the defendant replied the notice on 24-10-1977 denying the liability to deliver possession of the premises and also to pay die arrears of rent and further setting up his own right to the premises, the plaintiff had to file the suit for the reliefs as above. The defendant in his written statement denied the relationship of landlord and tenant between him and the p3aintiff,he denied the title of the plaintiff to the suit premises, he pleaded that the suit property was purchased by him and the husband of the plaintiff but only in the name of the plaintiff, that he actually paid the consideration to the property, there was a panchayat in regard to the disputes between the parties whereby the Panchayat gave a decision in his favour about his right and possession to the premises, that he never paid rent to the husband of the plaintiff or to the plaintiff or at any time as he is in possession of the property in his own right, that the suit is not maintainable, that the plaintiff is not entitled to the reliefs claimed and it may be dismissed with costs.

These issues were settled:-

Whether the defendant is the tenant of plaintiff as alleged ?

Is the plaintiff entitled for a relief of eviction of the defendant?

Whether the plaintiff is entitled for arrears of rent as well as compensation for use and occupation. If so, at what rate?

Whether the defendant is in possession of the suit property in his own right as alleged in the written statement.

To what relief?

The parties went to trial on the issues whereby the plaintiff examined herself as P.W.I and two witnesses as per P.Ws. 2 and 3 and got marked documents as per Exs.A-l to A-3 and on behalf of the defendant, he examined himself as D.W.I and four witnesses as per D.Ws. 2 to 5 and got marked documents as per Exs.B-1 to B-3 and Ex.X-1. Both the sides were heard. On the basis of the materials before him, the learned trial Judge held issues 1 to 3 in favour of the plaintiff, issue No. 4 against the defendant and issue No. 5 to lead to the decreeing of the suit.

The defandant has challenged the judgment and decree of the learned trial Judge in their entirety. The appreciation of evidence by the trial Judge, the conclusions and the findings on the issues and the final result are all challenged. Further more, the learned Advocate Mr. Krishna Murthy for the defendant who is the appellant has contended that the learned trial judge has totally ignored so many circumstances in the evidence of the plaintiff herself and her witnesses which would have demonstrated clearly that there was no relationship of landlord and tenant between plaintiff and defendant and that the defendant was in possession of the suit premises in his own right and that the suit was not maintainable on the materials themselves. Mr. Krishna Murthy, the learned Advocate for the appellant-defendant has further contended that issue No. 4 was strictly unnecessary for the suit and even then the finding recorded on that against the defendant is opposed to the evidence in the case. The learned Advocate Mr. Subhash Reddy for the respondent-plaintiff has contended that the learned trial Judge has given his findings based on materials after proper appreciation of the evidence and on the failure of the defendant to bring home his contention that he is in possession of the suit property in his own right. In fact, according to him, certain suggestions made to the plaintiff and her own witness P. W.2, it is demonstrated that the defendant has conceded that he had paid the rent to the husband of the plaintiff till he died. According to him although this is a first appeal since the learned trial judge has considered all the materials before him giving adequate reasons and based on materials, this Court may not be warranted in interefering with such findings.

These points arise for consideration: (1) Whether the findings of the learned trial Judge on issues 1 to 3 are justified. (2) Whether issue No. 4 was unnecessary in the nature of the suit. If so, whether any finding was necessary on issue No. 4. (3) Whether the judgmentand decree of the Court below deserve to be interfered by this Court. If so, to what extent?

In a simple suit for recovery of possession of the suit premises by a landlord against the defendant said to be the tenant thereon, the plaintiff has depended upon the oral evidence to establish the factum of the relationship of land-lady and tenant, the factum of rate of rent and the arrears of rent. The learned trial Judge has believed the evidence of the plaintiff and her witnesses P. Ws. 2 and 3 to hold that there has been the relationship of landlord and tenant between the parties, that defendant has been in arrears of rent and that the plaintiff is entitled to get the possession of the suit premises., inasmuch as the arrears of rent as claimed. The reasoning and the finding of the learned trial Judge in this regard can be found in para 8 of the judgment. The learned Advocate for the defendant-appellant has very seriously challenged the correctness of the reasoning of the trial Court in para 8 of the judgment. The learned Advocate for the plaintiff-respondent has totally supported it. The reasoning of the learned trial Judge in this regard is short and can be repeated to read as follows:

"........Ex. B-l which is a registered sale deed read with the evidence of P.Ws. 1 and 2 clearly shows that P.W.I is the owner of the suit property. The evidence of P.W.I and her brother P.W.2 and her uncle P.W.3 shows that the suit site was leased out to the defendant on a monthly rent of Rs. 300-00 per month and that the tenancy was oral. Though P.Ws. 1 to 3 have been cross-examined, nothing substantial is elicited so as to discredit their evidence with regard to the leasing out of the suit property to the defendant on a monthly rent of Rs. 300-00. The mere fact that P.Ws. 2 and 3 are related to P. W.1 is not a ground to discredit their testimony since even according to D.W.I, he has no enimity with P.W.3. In view of the evidence of P.Ws. 1 to 3,1 am inclined to agree with the contention of the learned advocate for the plaintiff that the defendant is only a tenant in respect of the suit property under the plaintiff on a monthly rent of Rs. 300-00 per month........".

In order to appreciate the rival contentions regarding the correctness or otherwise of the reasoning of the learned trial Judge and the finding thereon, it has become necessary to examine the same evidence available on record. This being a first appeal, this Court is entitled to go into the question of facts also. From the consistent testimony of the plaintiff and her witnesses P.Ws. 2 and 3, as rightly pointed out by the learned Advocate for the respondent Mr. Subhash Reddy, the case of the plaintiff spelt out therein is that the plaintiff is the owner of the premises having got it under the registered sale deed Ex.B-1, which she purchased from D.W.2 on payment of consideration of Rs. 12,000-00, the premises was let out to the defendant under an oral lease on a monthly rental of Rs. 300-00 during the life time of her husband, her husband negotiated and leased out the premises to the defendant, the defendant was paying the rent to her husband till he died and after his death, the defendant has stopped the payment. P.W.2 is the brother of the plaintiff. P.W.3 is closely related to the plaintiff. In fact, even he defendant is said to be a relative of the plaintiff. The plaintiff appears to be ignorant of the management of the property till her husband died, because admittedly her husband was managing the affairs in the family and the property. It was only her knowledge that her husband had let out the premises to the defendant. The defendant paid the rent to her husband. She has stated that after the death of her husband, her brother P.W.2 is managing the property. That is also the version of P.W.2 himself. In other words, from the testimony of the plaintiff and P.W .2, it is very clear that plaintiff has no personal knowledge about the real state of affairs of the suit premises and also the lease and the collection of the rent. She only knows that the rent was paid to her husband till he was alive and that thereafter the defendant never paid the rent to her. From the evidence of plaintiff and P.W.2, it is apparent that there was no demand of the rent from the defendant by the plaintiff or P.W.2 after the death of the husband of the plaintiff till the notice Ex. A- l was issued to the defendant on 17-9-1977 which was replied by the defendant on 24-10-1977. The plaintiff has depended upon the evidence of P.Ws. 2 and 3 regarding the factum of lease given by her husband to the defendant. It appears from the evidence of P.W.3 that the talks of oral sale took place near the shop of his brother and therefore he was able to know it. His affimative testimony is to the effect that the talks of the lease took place in his presence and the defendant has been the tenant on the suit premises since 10 to 12 years prior to the date of his examination. In view of the consistent testimony of P.Ws. 2 and 3 regarding the oral lease to corroborate the knowledge of the plaintiff about the lease and in the absence of the documentary evidence, we are to examine the totality of the circumstances available from the evidence. Particularly when P.Ws. 2 and 3 are the relatives of the plaintiff, their testimony has to be judged with caution although it cannot be rejected only on that ground. If there is supporting material and the supporting circumstances, there may not be any reason to reject their evidence, inasmuch as that of the plaintiff regarding the factum of tenancy of the defendant under the plaintiff.

The date of the sale deed Ex.B-1 is 10-7-1970. The date of the lease was prior to 26-8-1975 when the plaintiff''s husband died. According to the evidence it was about 7 years prior to the date of the suit. The notice Ex. A-l was issued on 17-9-1977. The suit was filed on 6-3-1979. If the plaintiff''s case is true that defendant had paid the rent to her husband, it was almost five years. There is nothing in the evidence of plaintiff or P.Ws. 2 and 3 that they have seen the defendant paying the rent to the husband of the plaintiff. Even after the death of plaintiff''s husband, the defendant never paid the rent till the notice was issued or till the suit was filed, which extends to a period of three years after the death of the plaintiff''s husband. The factum of non-demand of the rent by the plaintiff for such a long time leaves a serious doubt whether the defendant could be a tenant on the suit premises. Admittedly P.W.2 managed the affairs of the property or the lease after the death of the plaintiff''s husband, but there is nothing to indicate in his testimony that he has demanded the defendant to pay the rent at any time after the death of the plaintiff''s husband. The evidence of P.W.3 is not to prove the collection of the rent. He appears to be ignorant of it. Therefore, with such a conduct on the part of the plaintiff and her witness P, W.2, the oral evidence to prove the factum of tenancy gets weekened. It is true that there is nothing to indicate that P.Ws. 2 and 3 are either opposed to the defendant or inimical towards him. But their interestedness in the plaintiff outweighs such a circumstance. A rule of caution in examining their testimony with so many lacunae leaves a serious doubt whether the defendant could be a tenant on the suit premises after the death of the husband of the plaintiff.

Since we are examining the circumstances in view of mere oral evidence in the case, there appears to be ample circumstances to strengthen the doubt and improbability as above regarding the tenancy of the defendant on the suit premises. Ex.B-1, the sale deed under which the plaintiff purchased the suit premises from D.W.2 was produced by the defendant into Court. There is no explanation in the plaintiff as to why such an important document remained with the defendant. Even in the notice Ex.A-1 there is no explanation, muchless demand from the defendant to return the document if it was taken for any purpose. The explanation of the plaintiff and P.W.2 as to why such a document had been with the defendant is contradictory. According to the plaintiff the defendant took the original sale deed to obtain a copy as her brother had taken it away. The explanation is not very clear. It only means that plaintiff might have given the document to her brother P.W.2 and from whom the defendant might have taken. In other words, plaintiff is not certain as to how the defendant came into possession of Ex.B-1. It is also admitted by the plaintiff that the defendant filed a declaration before the Urban Ceiling Authority at her instance. At the same time she has admitted that she has never signed any document in that connection. According to P.W.2 defendant took the original sale deed to obtain licence from the M.C.H. It is not explained as to what was the licence he was to obtain from the Corporation and why P.W.2 obliged him with such a document when his status on the land was only that of a tenant. At any rate the explanation of the plaintiff and P.W.2 regarding such a possession of document with the defendant is not satisfactory, let alone contradictory. Although the plaintiff pleaded ignorance whether the suit premises is being used by the defendant to allow parking of carts and collecting some fees or charges, P.W.2 admitted that on the suit land bullock carts loaded with fire wood are parked and parking fee is collected. It is not his case that either he is collecting the parking fee or that the defendant after collecting the parking fee, is handing over the same either to P.W.2 or to the plaintiff. It is not clear from the evidence of P.W.2 as to how long the defendant has been doing it. If he was doing it at least since the date of the lease during the life time of the plaintiff''s husband, he was really making quite a sum of profit when there ought to have been a demand by the plaintiff to pay the charges or at least the rent. It is not the case of the plaintiff either in the plaint or in her testimony that the premises was let out to the defendant to use it for parking of the carts to collect the ground rent or the charges. Therefore, this is one of the circumstances which show that the defendant is using the premises not as a tenant but with some right gorge out from the status of a tenant. If the defendant was not permitted to allow the parking of the carts or for collecting the charges, it is nobody''s case that either plaintiff or P.W.2 questioned him at any time. There is not even a whisper in Ex. A-l about it. The defendant is also consistent in his defence ever since the reply Ex.A-2 was issued by him to Ex. A- 1 notice of the plaintiff that he has been in possession of the premises in his own right exercising certain acts as stated above. Even in the written statement the same defence is put forth.

These circumstances create a serious doubt or improbability whether the defendant could have been the tenant on the suit premises.

The defendant has come out with a theory as above that the suit premises was purchased from D.W.2 along with the plaintiff''s husband although the document Ex.A-1 was taken in the name of the plaintiff and although he paid the consideration. He also came out with a theory that as per the decision of the panchayat, the matter was put to auction and he paid the amounts so bid at auction and thus he has become the owner of the suit premises. In this connection he has depended upon Ex.B-2 an unregistered document on a stamp paper, Ex.B-3, a plan attached to Ex.B-2 and a decision of a panchayat in the register as per Ex.X-1. He has also examined D.W.2 to 5 in this connection, thereby he stated to show that he is exercising some serious conduct of being related to the premises or the plot by various methods not as a tenant but in some other capacity, which he says as the owner. Some material produced by the defendant in addition to other circumstances stated above clearly indicate that the oral lease set up by the plaintiff may not be probable or true.

The learned Advocate Mr. Subhash Reddy has pointed out two suggestions, one made to the plaintiff and the defendant in the cross- examination to indicate that the defendant had admitted the payment of the rent to the plaintiff''s husband during his life time and that he had also paid the rent to the plaintiff herself. They may be repeated. "It is incorrect to suggest that the defendant never paid any rent either to my husband or to me". "It is not true to say that I did not pay any amount to P.W.l''s husband". The true meaning of the above suggestions would be that the defendant paid the rent to the plaintiff''s husband and what he said he did not pay is not correct. After going through the entire evidence in the case, recording of such answers by means of suggestions by the trial Judge appears to be incorrect but also incoherent. Both the parties are certain about their respective stands. In regard to the oral lease, the defendant has categorically denied and in regard to the payment of rent to the plaintiff''s husband also he has never paid the rent since he is never a tenant. If we take the entire cross-examination of both the plaintiff and the defendant, the above suggestions appear to be totally different of context and torn out of the real meaning and implications. Having due regard to the ample evidence as a whole which is discussed in detail, the two above suggestions may not strengthen the case of the plaintiff that defendant has admitted about payment of rent to the husband of the plaintiff. Now to judge the matter as a whole and the circumstances in favour of the defendant that he being not a tenant in the suit premise, outweighs any little probability or little evidence on behalf of the plaintiff that he is a tenant on the suit premises.

Now coming to the reason of the learned trial Judge in regard to the evidence of P.Ws. 1 to 3 that nothing substantial has been brought out in their cross-examination appears to be totally beyond the record. Surprisingly so many circumstances as above in favour of the defendant are not even considered in its true perspective, which should have been influenced the learned trial Judge to hold that the oral lease is not established. The learned Advocate for the defendant is totally justified in contending as above that the findings on issues 1 to3 about the proof of lease, the rent, the arrears of rent, non- payment and plaintiff''s entitlement to get the possession and the arrears of rent are totally wrong and not justified. This Court justifiably accepts these contentions.

Admittedly issue No. 4 is held against the defendant. His case that he is in possession of the suit premises in his own right is rejected. It is true that the learned trial Judge has considered this aspect in detail in the opening stage of the judgment only in paragraph 7 comprising several pages. He has concluded and given a finding that the defendant has failed to establish his case covered by issue No. 4. It is on mat basis the case of the plaintiff is examined by the learned trial Judge. The opening sentence of para 8 is clear in this respect, to read:

"For the reasons stated while dealing with issue No. 4, and in view of my finding thereunder, it is evident that the defendant is not in possession of the suit property in his own right".

Mr. Krishna Murthy, the learned Advocate for the appellant-defendant is right in contending that the learned trial Judge has dealt with the matter topsy-turvy in examining the case of the plaintiff regarding the theory of lease. At this stage it may be pertinent to examine whether at all issue No. 4 was necessary in a suit like this. Although Mr. Krishna Murthy, the learned Advocate for the appellant, was prepared to argue on the question of finding on issue No. 4 also to the satisfactory of the Court, this Court feels that before adverting to such merits regarding issue No. 4 we are to deal with the scope of the suit to know whether at all issue No. 4 was necessary and how a finding on that was warranted.

It is true that in the sense that the suit is before a civil Court and of a civil nature, normally it could be u/s 9 of the C.P.C. But in reality is appears to be not so. The suit is for possession of the suit premises in addition to arrears of rent on the ground that plain tiff is the landlady and the defendant is the tenant in regard to the suit premises. Although the suit is for possession of a immovable property, it cannot be in general classified as a suit for possession like any other suit for a similar relief. That is how the law has distinguished different types of suits although for possession of immovable property. That is how while dealing with the limitation for such suits, distinctions have been drawn even in the Limitation Act. Although there may not be any clear indication in the provisions of the C.P.C. about the suits for possession, the provisions of the Limitation Act, 1963 (in short ''the Act'') are very lucid and expressive. Part V of the Act in the schedule deals with the suits relating to immovable property. Suit for possession may be by a mortgagor, by a mortgagee, by an owner of the property based on title, based on possession, based on forfeiture or breach of condition and by a landlord to recover possession from a tenant. At any rate, this suit can never be nor it is based on title strictly speaking or on possession or dispossession or by a mortgagor or mortgagee, etc, etc, etc., to be governed by Articles 61 to 66 for the purposes of limitation, regarding which the period of limitation are different and the causes of action are totally different. Article 67 of the Act totally governs the present suit. Because to read Article 67 by a landlord to recover possession from a tenant, the period of limitation is 12 years, and the time for which begins to run when the tenancy is determined. This gives a clear indication that this suit could never be for possession by the owner of the property but by the landlord from a tenant. This is also apparent from the pleadings themselves. Incidentally the plaintiff has claimed to be the owner and the defendant has set up the claim of rival title.

As already pointed out the species of the suit for possession may not be strictly u/s 9 of C.P.C. although for the purpose of the nature of the suit and the jurisdiction such a provision is operated. The suit arises out of the rights and obligations of the landlord and the tenant under Chapter V of the Transfer of Property Act, 1882 (in short ''the Act''). Section 108 of the Act deals with the rights and liabilities of lessor and lessee by Clauses (A & B). Section 108 sub-clause (q) makes it mandatory for the lessee or the tenant to put the landlord in possession of the property or the demised premises on the determination of the lease. This rule is known as ''Henderson''s Rule'' (Henderson v. Squire (1869) L.R. 4 Q.B. 170) which was adopted as an English rule and applied in India by the precedents, namely, in Venkatesh Narayan v. Krishnaji Arjun (1884) 8 Bom. 160., S. Abraham v. Mathevan AIR 1952 T C 359., and Thayarammal Vs. People''s Charity Fund, Bangalore and Others, . The rule is said to be an implied mandatory covenant on the tenant to handover possession of the demised premises to the landlord immediately on the determination of the lease or otherwise he would become a trespasser. In other words, on the determination of the lease, the landlord gets a right to evict the tenant from the demised premises when the tenant is bound to put the landlord in possession of the demised premises as a matter of duty.

It is true that the determination of lease would be in one of the modes enumerated u/s 111 sub-clauses (a) to (h) of the Transfer of Property Act. In the present case that has been done under sub-clause (h) of Section 111 of the Act. In fact that has been done by the plaintiff by issuing a quit notice popularly known as ''quit notice'' u/s 106 of the Transfer of Property Act as per Ex.A-1 which is replied by defendant under Ex.A-2. Since that was not challenged, there was no issue for the purpose of determination. It is significant to note that the lease or tenancy would become determinable by forfeiture u/s 111 sub-clause (g) item 2 where the lessee renounces his character as such for setting up a title in third person or by claiming title in himself. If the Court finds that the defendant or the adversary is a tenant or a lessee in law and vacates on setting up title even without a quit notice, he would be forfeiting his tenancy when he will be evicted as a matter of penalty under the said provision. Therefore, it was necessary for the learned trial Judge to first of all give a finding on the relevant issues 1 and 2 whether defendant is the tenant on the suit premises and on that even accepting that he would set up a title, that would become redundant and on that count alone he would have been evicted. Thereby defendant would be taking a serious risk if the tenancy of the lessee was established. In other words, it was totally unnecessary for the Court to find out whether defendant was in possession of the property in his own right. Merely on giving a finding that he was a tenant and the tenancy had been determined in any one of the modes permissible under law as above, there could have been a decree for the plaintiff in a case like this. The matter has not stood at this stage.

The further examination of the real and true implications would show that no such issue as issue No. 4 would arise in this suit. The proper region of issues would be under Order XIV of C.P.C. Interestingly issues are not defined in the Evidence Act. But ''the expression facts in issue'' is defined as follows: Section 3 of the Evidence Act.

"Any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability ordisabaility asserted or denied in any suit or proceeding, necessarily follows:

Explanation: Whenever under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, if a fact in issue".

A simple reading of this provision mean that facts In issue would be already existing between the parties when the pleadings are complete and the discovery and inspection of facts and documents are presented before the court. It is at that stage the Court would put such facts in issue in a particular form called "issues". Order XIV of C.P.C. comes into play only after the materials before the Court are placed from the stage of Order V of C.P.C. upto Order XIII of C.P.C. in one way or the other. Order VI Rule 2 of the C.P.C. contemplates that every pleading shall contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be. The expression ''material facts'' are not defined in Section 2 of C.P.C, but explained in Order XIV Rule 1 sub-clause (2) of C.P.C. as follows:-

"Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence".

In other words the material facts referred to in Order VI Rule 2 of C.P.C, are nothing but the material propositions within the meaning of Order XIV Rule 1 sub-clause (2) of C.P.C. A material proposition regarding right to sue and a defence would be the material fact. That becomes a fact in issue within the meaning of Section 3 of the Evidence Act. When such a material proposition affirmed the denial by the defendant, it would become an issue within the meaning of Order XIV Rule 1(3) of the C.P.C. Therefore in the light of these provisions and law, what a plaintiff in a suit for possession from a tenant should allege in the plaint and what a defendant would set up a defence in answer to that would be too simple, namely, that (1) he is the landlord (2) defendant is a tenant (3) terms of lease including the rate of rent, etc. (4) tenancy is determined in one of the modes u/s 111 of the Transfer of Property Act (5) arrears of rent, if any (6) demand or refusal or non-payment (7) cause of action (8) relief and (9) any other relief or useful materials. The defendant will give a statement of defence in regard to either admitting them or denying any one of them or all of them. It is in that situation Order XIV Rule 1 sub-clause (sic. rule) (3) comes into play to put such proposition affirmed and denied in the issues as follows:

(1) Whether the defendant is the tenant of the plaintiff as alleged and as per law.

(2) Whether the tenancy is determined in accordance with law.

(3) Whether any rent is due from the defendant as alleged. If so, to what relief.

(4) Whether the suit has cause of action.

(5) Whether the suit is maintainable (if it is contended) and whether the Court has jurisdiction to grant the relief (if any rent law is in operation in the area and on the property).

(6) Whether the suit is barred by limitation (if the defence of limitation is raised).

(7) Whether the plaintiff is entitled to (a) possession of the demised premises (b) arrears of rent as claimed or as determined and whatever.

Now to sum up in a suit for possession by a landlord the issue relating to defendant''s title would be totally alien and unwarranted. The learned trial Judge has adverted to it unnecessarily, has gone into such a question beyond the scope of the suit and has gone to the extent of recording a finding against the defendant rightly or wrongly. Here it may be emphasised that by doing so, Courts would deprive the parties of their legitimate reliefs in a properly framed suit when an occasion arises. The rule of res judicata is one of such operating situations on the parties regarding their respective rights. If the plaintiff had filed a suit for declaration of title or possession based on title, etc. etc. etc., he was expected to prove only that in the absence of defendant not being a tenant and when the defendant would have resisted it with his own theory that he is the owner or that he has perfected his title by adverse possession, etc. etc. etc. By giving a finding on issue No. 4 in a suit where parties were not directed to concentrate or lead evidence on such matters fully and effectively, it would be a travesty justice and violation of principles of natural justice. In other words, by framing issue No. 4 and by dealing with the same and giving a finding, the judgment of the trial Judge becomes vitiated. Under the circumstances, this Court has a duty to delete such an issue in the light of the observations made above.

Now having found that the plaintiff did not establish the factum of the defendant being a tenant on the suit premises or the suit property, the suit is bound to fail and since the learned trial Judge has decreed the suit by recording wrong findings on issues 1 to 3 they deserve to be set aside.

In the result, the appeal succeeds and it is allowed. The judgment and decree of the learned Additional Chief Judge, City Civil Court Hyderabad are set aside. The suit of the plaintiff, namely, the respondent herein shall stand dismissed. In the peculiar circumstances of the case, the parties shall bear their own respective costs throughout.

The learned Advocate for the respondent submits that an observation be made that the plaintiff, namely, the respondent would be at liberty to file a suit for necessary relief in accordance with law. In the considered opinion of this Court no such observation is necessary as parties would be really entitled to file such suits, if law permits. However, it is made very clear that none of the observations made in this judgment shall prevent any of the parties in the suit to seek any relief which is available to them in law.