JUDGMENT
Immaneni Panduranga Rao, J.
1. These two Second Appeals arise out of O.S. No. 115/82 on the file of the District Munsif’s Court, Tandur filed by the respondents for recovery of arrears of rent for the period from March, 1982 to September, 1982 and O.S No. 108/83 on the file of the same Court for possession of the suit premises and areas of rent from October 1982 to August, 1983 and for future mesne profits.
2. The case of the plaintiffs is that the defendant has taken on rent an open plot measuring 175 X 125 feet in S. No. 131 of Tandur for establishing petrol bunk of Indian Oil Corporation and has committed default in payment of rent; that by virtue of a compromise entered into between the parties on 1-5-1989 the defendant agreed to pay an additional amount of Rs. 175/- per month towards rent for establishing a stone polishing machine and has committed default in payment of rent. It is alleged in O.S. No. 108 of 1983 that in the earlier suit the defendant filed the written statement denying the title of the plaintiffs and therefore they have determined the tenancy under Section III (h) of the Transfer of Property Act. On those allegations they filed the suit for recovery of possession of the vacant site, arrears of rent for the period subsequent to the date of the earlier suit and for future mesne profits.
3. Both the Courts below held that the lease is binding on the defendant; that the denial of title by the defendant in the written statement filed by him in O.S.No. 115/82 is contrary to Section 116 of the Evidence Act and is not legal. The learned counsel for the appellant challenged that concurrent fnding of fact of the courts below by arguing that the tenant is entitled to say that the landlords have no valid title to the suit property; that Exs. Bl and B2 were not properly considered by the lower appellate court; that Exs. B.1 and B.2 clearly point out that the suit property constitutes evacuee property and if so the Civil Court has no jurisdiction to entertain the suit. He argued that Section 46 of the Administration of Evacuee Property Act operates as a bar for the maintainability of the suit. The learned counsel for the appellant urged an additional-ground that under The Burmah Oil Company (Acquisition of Shares of Oil India Limited and of the Undertakings in India of Assam Oil Company Limited and the Burmah Oil Company (India Trading Limited) Act, 1981 (Act No. 41 of 1981) (hereinafter referred as Act No. 41 of 1981) the lease which is in favour of the Indian Oil Corporation has vested in the Central Government by virtue of Section 7 of the Act and that the suits which were filed in 1982 and 1983 subsequent to 14-10-1981 which is the date of vesting, are not maintainable in law as the rights and interests of the lessee have vested in the Central Government. As a corollary to the above argument, he submitted that the Central Government not having been impleaded in the suits, the suits are bad for non-joinder of parties.
4. In support of his contention, the learned counsel for the appellant relied upon a decision of the Supreme Court in D. Satyanarayana v. P. Jagadish, . While considering the scope of estoppel operating against a tenant under Section 116 of the Evidence Act, the Supreme Court held that Section 116 of the Act does not apply when the tenant is under threat of eviction by person claiming paramount title. He tried to place reliance upon Ex. B.1 notice in support of his contention that there was threat of eviction by the Tahsildar of Tandur Taluq. Ex. B.1 is a memo issued by the Tahsildar of Taudur to the Police Patel of Tandur bringing to his notice that one Abdul Kareem, the legal heir of John Mohammad and Sri Satyanarayana, Marwadi, tenant were in arrears of rent from the periods specified therein and that the lease amount of S. Nos. 12, 38 and 40 of Shankarapally as per the tenancy register is due from 1969, and directing the said Police Patel to recover and remit the above rental arrears of evacuee property from 1960 to 1982. There is absolutely no mention that the vacant site which is the subject matter of the second appeals is either an evacuee property or that the defendant herein was m arrears of rent. In the bottom of the memo, It is seen that a copy of the memo is also marked to the defendant describing him as the tenant of S.No. 131, It is not mentioned that the defendant was in arears of rent nor was there any demand for payment of arrears of rent. The memo does not empower the Police Patel to evict the defendant on failure to pay the arrears of rent. Merely because a copy of Ex. B.1 memo was marked to the defendant describing him as the tenant of S.No. 131 of Tandur and stating that the said S.No. comprises of 21 guntas, it cannot be said that the suit property constitutes evacuee property or that the defendant was under threat of eviction, it is not shown that subsequent to the receipt of Ex. B.1 memo by the Police Patel, he has taken any further action against the defendant by either demanding the arrears of rent or threatening to evict the defendant in default of payment of arrears of rent. That being the case, it cannot be said that the defendant tenant was under threat of eviction by person claiming title in order to enable him to invoke the decision in D. Satyanarayana V. P. Jagadish (1 supra).
5. That part, it is seen from the judgment of the lower appellate court in A.S. 84 of 1984 that the only point that was emphatically argued by both the parties before the learned Subordinate Judge is whether Ex.B.1 entitles the defendant to deny the title of the plaintiffs. The question that the Civil Court has no jurisdiction to entertain the suit by reason of the suit property constituting evacuee property was not urged before the learned Subordinate Judge. That being the case, it is not open to the appellant to urge that point in the second appeal. Even otherwise under Section 46 of the Administration of Evacuee Property Act, the jurisdiction of the Civil Court is barred to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or to question the legality of any action taken by the Custodian-General or the Custodian under this Act; or in respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determine. Thus the bar imposed by Section 46 is not absolute, but is limited to the extent indicated in Section 46. That being the case, it cannot be said that Section 46 operates as a bar for maintainability of the present suits.
6. The learned Subordinate Judge has rightly held that no reliance can be placed upon Ex.B.1 because there was no threat of eviction and that there is no proof of any follow-up action taken in pursuance of Ex.B.1 notice. I therefore hold that the decision of the Supreme Court in D. Satyartarayana v. P. Jagadish (1 Supra) has no application to the facts of this case and it is not open to the tenant to deny the title of the plaintiff.
7. The last submission made by the learned counsel for the appellant is that under Section 7 of Act No. 41 of 1981 every right of interest in respect of the suit property has vested in the Central Government and as such, the suit is not maintainable against the defendant. He further argued that unless the Central Government is imp leaded in the suits, the units are bad for non-joinder of the parties. It is seen from Ex. A-1 marked in O.S. No. 115/82 that the defendant has agreed to pay a rent of Rs.200/- per month for establishing the petrol pump of Indian Oil Corporation and Rs. 175/- per month for establishing the stone polishing machine within the same plot. Thus the lease is not exclusively for running the petrol bunk. The lessee is the defendant, but not the Indian Oil Corporation. Section 5 of Act 41 of 1981 lays down that on the appointed day, any right, title or interest of the Assam Oil Company Limited and the Burmah Oil Company (India Trading) Limited in relation to their undertakings in India shall transfer to and vest in the Central Government. The above two undertakings appear to have been vested in the Indian Oil Corporation Limited with effect from 14-10-1981 as per the Gazette of India, dated. 13-10-1981. So the effect of Section 5 of Act 41 of 1981 is that w.e.f. 14-10-1981 the Assam Oil Company Limited and the Burmah Oil Company (India Trading) Limited vested in the Indian Oil Corporation. The present lease has nothing to do either with the Assam Oil Company Limited or the Burmah Oil Company (India Trading) Limited. It is not shown that the right, title or interest of the India Oil Corporation Limited has vested in the Central Government. That being the case it cannot be said that the Central Government is a necessary party to the suits. Therefore, the failure to implead the Central Government as a defendant in the suits is not fatal to their maintainability. The lease deed between the plaintiffs and the defendant is dated. 5-1-1978 for the period commencing from 1-12-1977 for a period of 20 years. As I mentioned already, it is the defendant who is the tenant, but not the Indian Oil Corporation. In any event, it is not a pure question of law that can be permitted to be raised for the first time in the second appeal. Whether the Indian Oil Corporation Ltd. is the tenant and if so whether its properties have vested in the Central Government by virtue of Act 41 of 1981 are matters which have to be pleaded by the defendant in the written statement. As held by the Supreme Court in T.V.V. Narasimham v. State of Orissa, a party cannot be permitted to raise a plea of mixed question of fact and law for the first time in the second appeal,
8. For the above reasons, I hold that the findings and the conclusion arrived at by the Courts below are correct and do not call for any interference. The S. As are accordingly dismissed without costs.