Sri Venkateswara Oil Company vs Guduru Jalaja Reddy and Others

P. Ramakrishnam, J.—Defendant Nos. 1 to 3 are the appellants. One Guduru Chengareddy, father of the third respondent filed the suit for recovery of possession of the plaint schedule vacant site, and for arrears of rent amounting to Rs. 23,250/- together with future profits.

The material allegations as disclosed in the plaint are summarised hereunder:

The plaint schedule property originally belonged to Guduru Atchamma, the mother of the first plaintiff as she got the same under registered partition deed dated 14-7-1956 between herself and defendant Nos. 1 to 3 and others. In fact, defendant Nos. 1 to 3 are the brother''s sons of the said Atchamma. . Defendant Nos. 1 to 3, and 4th defendant who is the third respondent herein, who is the son of the first plaintiff are the partners in a registered firm called Sri Venkateswara Oil Company, Tirupati and they obtained the plaint schedule site from the said Atcamma on lease for running a business in Diesel and Petrol, etc. The lease commenced on 1-5-1965 on a monthly rent of Rs. 750/-. The defendants had been paying rents to Atchamma and obtaining receipts. Atchamma died on 24-5-1971 leaving behind her the 1st plaintiff, her only son. Defendant Nos. 1 to 4 have attorned to the first plaintiff after the death of Atchamma in respect of the suit property and they have been paying rents to the first plaintiff regularly till December, 1974, and thereafter, . they committed default in payment of rent from January, 1975 to the first plaintiff. The first plaintiff wanted the plaint schedule property for his bona fide requirement, and as the defendants did not oblige, he issued notices dated . 12-5-1977 terminating the tenancy of the defendants and also to pay the arrears of Rs. 23,500/-. The defendants refused to receive the said notices. Though s the fourth defendant received the notice, he did not care to reply. The first plaintiff once again sent notices dated 16-6-1977 terminating the tenancy from 1-8-1977. Defendant Nos.1 to 3 again evaded the service and only the fourth defendant received the notice, but he did not respond. Hence the suit.

The written statement filed by the third defendant was adopted by defendant Nos. 1 & 2. The fourth defendant did not file any written statement. Defendant Nos. 1 to 3 denied that the plaint schedule property belonged to Atchamma. They also denied the registered partition deed dated 14-6-1956, so also their taking the plaint schedule site on lease from Atchamma on 1-4-1965. It is further denied that they were paying any rents to Atchamma. The further allegation that they have attorned to plaintiff No. 1 as tenants is false. Issuance of notices was also denied. The fourth defendant is the son of the first plaintiff, and therefore, the suit was filed as a result of collusion between them. The plaint schedule land of Ac.0-94 cents is in Survey No. 150.

The entire land in Survey No. 150 belonged to Koduru Venkata Narasimhacharyulu from whom Krishnareddy, brother of D-5 took the land on lease under a registered lease deed dated 27-4-1937. After the death of-Krishnareddy, the leasehold rights devolved upon his brother, Narasimhareddy who too died in 1939. On his death, the leasehold rights devolved on his brother, D-5 who has been in exclusive possession and enjoyment of Survey No. 150. Later, the fifth defendant purchased the lessor''s rights under a registered sale deed dated 25-10-1964 and from then onwards, the fifth defendant has been in exclusive possession and enjoyment of the entire Survey No. 150. Patta also stands in his name. O.S. No. 84 of 64 filed by the lessor, Pedda Jeeyangar against D-5 and others was dismissed on 29-7-1966. Plaintiff''s mother never exercised any rights of ownership over the plaint schedule property at any time. Sri Venkateswara Oil Company in which the 4th defendant was a partner originally, was dissolved on account of the misconduct of the 4th defendant and defendant Nos. 1 to 3 alone are carrying on the business under the name and style of Venkateswara Oil Company.

As defendant Nos. 1 to 3 raised an objection that 5th defendant is a necessary party to the suit, he was impleaded in LA. No. 333 of 1978 on 19-10-1978. He filed a separate written statement almost on identical lines as the one filed by the 3rd defendant. The first plaintiff subsequently died on 10-4-1986. Plaintiff Nos. 2 and 3 who are the minor sons of the fourth defendant who were stated to be legatees along with the fourth defendant under the will executed by the first plaintiff were impleaded in the suit in LA. No. 660 of 1986. The first plaintiff''s daughters were impleaded as defendant Nos. 6 & 7 in LA. No. 1077/86. The trial Court framed necessary issues. The plaintiff examined 4 witnesses including the first plaintiff as P.W.1; the fourth defendant as P.W.2, brides marking Exs.A-1 to A-51; while the defendant Nos. 2 and 3 alone examined, besides marking Exs.B-1 to B-54. The trial Court on a consideration of the evidence on record decreed the suit for ejectment against defendant Nos. 1 to 4 from the plaint schedule property together with mesne profits to be determined on a separate application. The suit against defendant Nos. 5 to 7 was dismissed. Hence the appeal by the unsuccessful defendant Nos. 1 to 3.

The points that arise for consideration in this appeal are:

(1) Whether the suit property belongs to Guduru Atchamma;

(2) Whether the defendant Nos. 1 to 4 are the tenants of Guduru Atchamma; and

(3) Whether the plaintiffs are entitled to recover possession of suit property together with profits.

Although the deceased first plaintiff who is the son of Guduru Atchamma was examined in part, as he was not tendered for cross-examination, his evidence was eschewed by the lower Court. His son, the fourth defendant was examined as P.W.2. After the death of the first plaintiff, P.W.2''s sons are imp leaded as plaintiff Nos. 2 and 3 and his daughters as defendant Nos. 6 and 7. An employee of the Petrol Bunk run by defendant Nos. 1 to 4 was examined as P.W.3.

The case of the plaintiffs is that the plaint schedule property, consisting of Ac.0-94 cents together with 1/4th share in the well situated in Survey No. 150 originally belonged to Atchamma, the mother of the first plaintiff. The said property fell to her share under a partition deed (Ex.A-1) dated 14-7-1956 to which defendant Nos. 1, 3 and 5 are parties. Defendant No. 4 is practically supporting his father, the first plaintiff. The case of the plaintiffs is that defendant Nos. 1 to 3 and the fourth defendant who is no other than the son of the first plaintiff constituted a firm by name Sri Venkateswara Oil Company, evidenced by Ex. A-2, an extract of registration of firms dated 24-10-1966, and they have taken the suit land on lease from Guduru Atchamma on 1-4-1965 and were paying the rents to her. Atchamma died on 24-5-1971. After her death they attorned to her son the first plaintiff and paid rents to him till the end of January (sic. December), 1974. Thereafter they have stopped paying rents to him. Hence the suit.

Admittedly, there is no written lease deed. P.Ws.2 and 3 were only examined to prove the alleged lease. P.W.2 states in his evidence that all the partners of the Sri Venkateswara Oil Company took the plaint schedule site on lease on a monthly rent of Rs. 750/- from Atchamma on 1-4-1965. He states that the payment of rent was entered into the account books and the firm was submitting Income tax returns. The third defendant who was managing the day to day affairs of the firm was paying the rents to the first plaintiff and collecting the receipts. But neither the account books nor the Income tax returns have been filed. He has not even called upon defendant Nos. 1 to 3 to produce the books of account. P.W.1 who is the proper person to speak about the receipt of rents, if any paid by the defendants after the death of Atchamma, and to the attornment in his favour, has refrained himself from being available for cross-examination, for the reasons best known to him. Therefore, his evidence has to be eschewed. P.W.3 claims that he worked as the accountant in Sri Venkateswara Oil Company, Tirupati from 1965 to 1982. He states in his evidence that he is aware of the fact that defendant Nos. 1 to 4 have obtained the plaint schedule property on lease from Atchamma on a monthly rent of Rs. 750/- per month. He further states that payment of rent was entered in the account books. According to him no receipts were taken when rents were paid. In the absence of any documentary proof about the entering into the lease, or about the proof of payment of rent stipulated, the lower Court has rightly disbelieved the evidence of P.Ws.2 and 3 on this account since their evidence is not inspiring. Therefore, I have no hesitation to agree with the finding of the lower Court that the plaintiffs have failed to prove the relationship of landlord and tenant.

The defendants have denied the execution of Ex.A-1 partition deed to which defendant Nos. 1 to 3 and 5 are parties. Although the defendants were parties none of them was prepared to enter the witness box, except the third defendant who was a minor at that time. So, the conduct of the major defendants in shirking to give evidence cannot but be viewed seriously. The fifth defendant who has put forth a rival claim has also shunned the witness box. The contesting defendants although denied the very execution of Ex.A-1 partition deed had to yield at the stage of evidence that though it was executed it was never acted upon. Atchamma was no other than the sister of the father of defendant Nos. 1 to 3 and Govindareddy. Defendant No. 5 is another brother of Atchamma. Krishnareddy, the elder brother of Atchamma died long back followed by the father of defendant Nos. 1 to 3 in the year 1939. Therefore, the properties of the family were divided among them into A, B, C and D schedule property. A schedule properties were allotted to the sons : of Krishnareddy; B schedule properties have fallen to the share of Govindareddy. Under Ex.A-1 D.W.1, the third defendant was described as the minor, represented by his eldest brother, Govindareddy. C schedule properties are shown to have fallen to the share of the fifth defendant; and D schedule properties are shown to the share of Atchamma. In Ex.A-1, partition deed also, Atchamma was shown as the elder sister of the fifth defendant and she was running the family. The entire extent of Ac.3-87 cents in Survey No. 150 was divided into four shares, after leaving Ac.0-11 cents kept as joint for storing hay ricks. Therefore, each of the branches has got Ac.0-94 cents under the partition. In fact, Ex.A-1 partition deed recites that what was divided under it was only the leasehold rights. The fifth defendant purchased the rights of the lessor under Ex.B-3 sale deed dated 25-10-1964. Accordingly, three branches have agreed to pay Rs. 10/- to the fifth defendant every year towards cist. Therefore, in this family background, as narrated above, the pertinent question that falls for consideration is whether Ex.A-1, partition deed, is true and acted upon.

There is overwhelming evidence to show that Ex.A-1, partition deed was executed, as contended by the plaintiffs, and acted upon. Ex.A-28 which is a sale deed executed by the fifth defendant on 3-3-1969 shows sale of Ac.2-00 cents of land which has fallen to his share under Ex.A-1. What is more significant of this document is that the third defendant attested the said sale deed. In Ex.A-27, a certified copy of statements of defendants Nos 1 to 3 and 5 who stated before the R.D.O. Tirupati that they are entitled for compensation for the land acquired, as they have derived title to the property under Ex.A-1. Ex.A-31 is a similar statement made before the Land Acquisition Officer, Chandragiri. D.W.1 claimed compensation to the exclusion of the first plaintiff. Ex.A-31 shows that the first plaintiff has consented to this survey number as having fallen to the share of defendant Nos. 1 to 3 and their brother, Govindareddy. Ex. A-41 is the registration extract of another sale deed executed by the grand children of Krishnareddy in favour of a Charitable Trust, wherein they traced their title to Ex.A-1 partition deed. Even in Ex.A-23 dated 31-3-1980 which is a sale deed executed by Soora Srinivasulu Reddy, son of Krishnareddy etc., for selling some property to the Government for the construction of a building for Telecommunication, tracing the title to Ex.A-2 partition deed only. A reading of the plaint in O.S. No. 34 of 1974, a suit filed by the Bank shows that the fifth defendant had deposited a copy of Ex.A-1 to satisfy the Bank that he was allotted certain properties under Ex.A-1. Ex.A-22 is a copy of the letter addressed by the fifth defendant making deposit of his title deeds including a copy of Ex.A-1 with the Bank for creating an equitable mortgage. Under Ex.A-44 dated 1-4-1965 Govindareddy, son of Narasimhareddy executed a settlement deed in favour of his brother''s children. Thus, the overwhelming documentary proof shows that not only Ex.A-1, partition deed was executed, but it was also acted upon. Therefore, I have no hesitation in accepting the finding of the lower Court that Ex.A-1 is true and it has been acted upon.

The appellants claim that Ex.A-1 was not acted upon since the suit survey number was not sub-divided; the patta for the said survey number stands in the name of the fifth defendant only. They also filed Ex.B-4, certified copy of 10(1) account; Ex.B-19, Certified copy of 10(1) account for other lands covered by Ex.A-1. The fifth defendant alone has been paying taxes and land revenue for the suit survey number as well as other property. Exs.B-11 to B-15 are the property tax receipts, but there is no proof that they relate to the house bearing No. 301-A constructed in the 11 cents kept as joint in the partition deed. They rely upon Ex.B-16 Certified copy of the decree in the suit filed by Pedda Jeeyanger which was dismissed as not pressed. But the copy of the written statement filed by D-5 was not filed to know his stand. Ex.B-33 is a Note Book evidencing payment of cist for the suit survey number and other properties by the fifth defendant. D.W.1 deposed that the fifth defendant mortgaged the property that fell to the share of Atchamma in favour of Indian Bank, Tirupati and obtained a crop loan for which he stood as surety. Under Ex.A-1 both the fifth defendant and Atchamma got properties and therefore, | it cannot be said that the fifth defendant hypothecated the properties of Atchamma alone. Therefore, in the face of unimpeachable evidence afforded under Ex. A-28 and A-44, the documents which have come into existence prior to 1970 in which reference to Ex.A-1 has been made, more so, when the fifth defendant himself was the executant of Ex.A-28, the evidence adduced by the defendants cannot out-weigh the same.

Sri P. Ramachandra Reddy, the learned Senior Advocate appearing for the appellants vehemently contended that payment of cist, agricultural tax, property tax for the house bearing No. 301-A, entries in the Adangals etc., clearly prove adverse possession in favour of the fifth defendant. It must be made clear that though the fifth defendant pleaded adverse possession, it is not pleaded that there was denial of rights of other co-owners, or that there was any assertion of ouster.

Sri N. Subba Reddy, the learned Senior Advocate relying on P. Lakshmi Reddy Vs. L. Lakshmi Reddy, submits that when one co-heir is found to be in possession of the properties, it is presumed to be on behalf of all the Co-heirs. He also submits that the possession of one co-sharer should be open, uninterrupted, hostile to the real owner and for over a statutory,period before it matures into adverse possession. In this case, the fourth defendant who is the son of the first plaintiff is also admittedly in joint possession and as such no question of adverse possession arises. I agree with the submission of Sri N. Subba Reddy. To the same effect is the decision in Peeran Sahib v. Jamaluddin Sahib AIR 1958 A.P. 48, wherein it is held that non-participation of profits would not amount, to ouster. Therefore, considering the circumstances and the evidence in this case, it must be held that the claim of the fifth defendant that he has perfected 5 his title by adverse possession by ousting the plaintiffs cannot be accepted.

Sri P. Ramachandra Reddy, the learned Senior Advocate appearing for the appellants submits that the suit was filed for recovery of possession on the ground that the tenancy is validly terminated and the Court-fee is also paid on that basis. As the tenancy is not established and as there is no prayer for recovery of possession and as no separate Court-fee is paid for that purpose, the plaintiffs are not entitled to any reliefs. He relies on a decision of the Madras High Court rendered by a learned single Judge in K. Gopalu Mudali Vs. A. Venkatesu Mudali and Others, . In the said decision, the question that fell for consideration is whether the Court-fee paid for recovery of possession of the land on the basis of tenancy valuing the suit u/s (xi)(cc) of the Court-fees Act is proper, or whether ad valorem Court-fee should be paid u/s 7 Clause (v)(d) of the said Act. The learned Judge found on a reading of the plaint that no question of title was raised, and as such, the Court-fee paid was correct, but if the question of title is raised it shall not be g6ne into by the trial Court. In a Division Bench judgment in Ponnia Pillai and Others Vs. Pannai, Sivanupandia Thevar through his Brother and Guardian, R.K. Viswanatha Thevar, , wherein it is observed that though the suit is filed on the basis of an averment of tenancy which was not proved and when the defendant had set up adverse possession and evidence was recorded from both sides on the question-of title, a decree based on plaintiff''s title could be passed. In view of this judgment, the judgment of the learned single Judge in Gopalu v. Venkatesu (3 supra), cannot be followed. To the same effect is the decision in Polisetti Govinda Rao v. K. Kanakamma and Anr. 1957 ALT 7, wherein it is observed that even though no issue is framed regarding title a decree based on the plaintiff''s title can be given against the defendants in a suit filed on the basis of an averment of tenancy which is not properly proved.

Sri N. Subba Reddy, the learned Senior Advocate appearing for the respondents submits that normally relief should be founded on pleadings made by the parties. But when the parties knew about their respective contentions and when evidence was adduced by both parties, and when no prejudice would be caused to the parties, the Court can mould the relief in the absence of a specific issue or an averment to that effect. He relies on Bhagwati Prasad Vs. Shri Chandramaul, . A four Judge Bench of the Supreme Court observed as follows:-

"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew mat the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."

Sri P. Ramachandra Reddy, the learned Senior Advocate submits that the view expressed in the fore-going decisions was not approved by the Supreme Court in a later decision in Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, . He relies on the following observations made by the apex Court.

"Now it is a fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of suits but also appeals."

In the said decision, what was considered was whether the High Court should have allowed the amendment at a very late stage in a suit filed for recovery. of possession. In that connection, the Supreme Court observed that Courts may allow an amendment pleading the changed circumstances to shorten the litigation and to avoid multiplicity of proceedings. This decision has no analogy to the proposition where a suit filed for recovery of possession based on tenancy relief can be granted on the basis of title on the failure of plea of tenancy. The last decision on which reliance is placed by the learned Senior Advocate for the appellants is M. Ramasamy Pillai (dead) by LRs. Vs. The Hazarath Syed Shah Mian Sakkaf Khadiri Thaikal, . In the said case, the plaintiff has come forward with the case that the defendant was a tenant holding over. The tenant adduced overwhelming evidence to show that he was in possession of super structure even from the year 1942 i.e., long before 1955. Therefore, it was found that the tenant was in possession on the basis of existing tenancy which was in renewal of the earlier tenancy. The plaintiff having pleaded that the defendant was a tenant holding over cannot be permitted to take an altogether different plea that the defendant was not a tenant as the property in question was a wakf property and the Muthawalli had no right to grant lease under Ex.A-5 dated 17-11-1995. As the plaintiff wanted to take a mutually inconsistent and destructive plea, the Supreme Court observed that it is impermissible. This decision also in my view does not advance the case of the appellants. In the case on hand, the respondents are consistently contending that they are the owners. They have not taken any inconsistent or destructive plea. As already seen, the plaintiffs as owners are entitled to recover possession of the land irrespective of the fact whether the tenancy set up by them is established or not; inasmuch as they are consistently claiming that they are the owners of the land and as the plea set up by the fifth defendant that he is the absolute owner is not established, the trial Court has rightly passed the decree.

For all the above reasons, I hold that Atchamma was the original owner and the plaintiffs are entitled to recover possession together with profits although they have failed to establish the tenancy set up by them.

In the result, the appeal fails and is accordingly dismissed, but in the circumstances without costs.

ORDER

The cross-objections are filed by the plaintiffs. The Suit was filed for recovery of possession of the plaint schedule property together with mesne profits, both past and future. The trial Court decreed the suit for ejectment against the defendants 1 to 4 from the plaint schedule property together with future mesne profits to be determined on a separate application. Questioning the said decree, defendants 1 to 3 filed A.S. No. 2144 of 1987. The plaintiffs filed cross-objections on disallowing the claim for profits for three years prior to the suit by way of damages for use and occupation.

In my judgment dated 18-10-1996 the appeal was dismissed, but the pendency of the cross-objections was not brought to my notice at that time. Hence the same could not be disposed of. Therefore, Sri N. Subba Reddy, learned Advocate for the cross-objectors, filed a letter for being mentioned. Accordingly the matter is posted for further hearing.

Heard both the counsel.

Sri N. Subba Reddy, the senior Advocate, submits that when the plaintiffs'' title to the property is upheld and when the claim set up by the 5th defendant for ownership is not established, the trial Court should have passed a decree for past profits also. On the other hand, Sri P. Ramachandra Reddy, senior Advocate appearing for the appellants, submits that the suit was filed for recovery of possession on the basis of tenancy and as the plaintiffs failed to establish the tenancy, the lower Court although granted a decree for possession rightly refused mesne profits. To put it differently, the contention of the learned counsel for the appellants is that as the case set up by the plaintiffs is not accepted or in other words when the main basis on which the suit is filed is false, the question of granting past profits does not arise. Under Order 20 Rule 12 of C.P.C., where the suit is for recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree both for possession of the property and also for the rents or profits. This rule does not, in my view, make any distinction as to the basis on which the suit is filed for recovery of possession. The suit on hand is one for recovery of possession and a decree was also passed for the said relief. Therefore, the claim for past profits cannot be denied on the ground that the Court has not accepted the basis for which the claim is made for recovery of possession, although the decree was passed for recovery of possession or the relief of possession was granted on altogether a different ground. There is no room for making such a distinction on the language of Rule 12 Order 20 of C.P.C.

Although Rule 12 contemplates that the Court may pass decree for possession and for profits, the profits should normally follow a decree for possession unless exceptional circumstances are shown. Sir N. Subba Reddy, senior advocate, relying on the decision in Doraiswami Ayyer and five Ors. v. T. Subramania Ayyer and two Ors. ILR Mad 16 submits that the Full Bench of Madras High Court agreed with the contention that the word ''may'' used in the Rule should be construed as ''shall'' or mandatory. As already stated, profits shall follow the decree for possession, unless special circumstances prevail. Award of profits is the Rule, while exception is denial. I am of the opinion that no such special circumstances can be culled out from the facts of this case.

Therefore, for all these reasons, agreeing with the learned Advocate for the cross-objectors, I hold that the plaintiffs are entitled to past profits. As the future profits were directed to be determined on a separate application, the past profits claimed by the plaintiffs for the three years prior to the filing of the suit also shall be determined by a separate application.

The cross-objections are, accordingly, allowed. No costs.