JUDGMENT
1. This second appeal is directed against the judgment dated 26-11-1984 in AS No.95 of 1981 on the file of the Additional District Judge, Vizianagaram under which the judgment dated 12-4-1980 in OS No.414 of 1974 on the file of the Principal District Munsif at Vizianagaram decreeing the suit was confirmed.
2. The facts relevant to this appeal may be stated briefly as follows:
Defendant is the appellant herein and the respondents are the plaintiffs, Parties shall be referred to hereinafter as they were arrayed in the trial Court.
3. The plaintiffs filed OS No.414 of 1974 on the file of the Principal District Munsif, Vizianagaram for evicting the
defendant from the suit schedule property and for recovery of rents and for mesne profits. The case of the plaintiffs is that the 3rd plaintiff was the owner of the suit property. He conveyed the same to the 2nd plaintiff under registered sale deed dated 3 0-12-1971 and relinquishment deed dated 31-1-1972. Subsequently, the 2nd plaintiff was admitted to the benefits of partnership of the 1st plaintiff on 1-10-1972 and in pursuance of the same, the plaint schedule property is vested in 1st plaintiff. The defendant took the suit schedule property on lease from the 3rd plaintiff on 9-12-1967 for the period commencing from 1-7-1988 to 31-12-1970 on monthly rent of Rs.25/- and a licence fee of Rs.25/- payable on the first day of each month. The tenancy was said to be from month to month. The defendant agreed to remove the structures raised by him in the plaint schedule property after expiry of the lease period and to vacate the suit premises without any notice. Lease period expired by 31-12-1979 but the defendant did not vacate the suit property. He also failed to pay rents and licence fee after 31-3-1973. The tenancy was, therefore terminated by 31-1-1974 by issuing a notice on 20-6-1974. The defendant paid rents to the 2nd plaintiff upto 30-9-1972 and thereafter to the 1st plaintiff from 1-10-1972 to 31-3-1973. After termination of tenancy, the possession of the defendant is wrongful and he is liable to pay mesne profits till he delivers vacant possession of the property.
4. The defendant’s plea is that the 3rd plaintiff has no right to dispose of the suit property, as it is a part of Prince of Wales Market and entire market is the subject matter of a Trust and the 3rd plaintiff being only a trustee, the sale deed and relinquishment deed which are referred to in the plaint are not valid and enforceable. Partnership firm in the name of 1st plaintiff is a make believe firm. The 1st plaintiff has no business. It is also pleaded that
the 3rd plaintiff acting as a guardian of 2nd plaintiff has no right to transfer minor’s properties. It is pleaded that since the 2nd and 3rd plaintiffs are not claiming any right, title ro interest in the plaint schedule property, the 1st plaintiff also has no right or title in the said property and as such the suit for eviction and mesne profits is not maintainable. It is admitted that the defendant has taken plaint schedule property on lease, but it is pleaded that the lease is not terminable and the averment that lease expires by 31-12-1970 and that there was termination of tenancy by 31-7-1974 is denied.
5. It is further pleaded that the lease was granted for the building purpose in the market place. In view of creation of trust in respect of the market place it has not been the custom, practice or usage to evict the tenants from the property and as such the defendant cannot be evicted from the suit property. It is not correct to contend that the defendant did not pay rent after 31-3-1973. The staff of 3rd plaintiff collected the rents. The defendant is not liable to pay any interest, as there is no contract. It is stated that the relinquishment deed was vitiated by fraud on stamp and registration. It is further pleaded that the suit property is an impartiable estate and 3rd plaintiff cannot alienate the same.
6. On these pleadings, issues were framed by the trial Court on the question whether the 3rd plaintiff was only a trustee of Prince of Wales market, Vizianagaram and on that ground whether the suit as framed was maintainable. Another issue was in regard to validity of sale deed and relinquishment deed said to have been executed by 3rd plaintiff in favour of the 2nd plaintiff. Another issue related to whether the plaintiff firm is a make believe partnership. The fourth issue, which appears relevant for the purpose of
appeal, is on the question whether the
lease was not terminable one. Another issue was relating to whether the plaintiffs terminated the tenancy by 31-7-1974. Another issue framed is with regard to the applicability of the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act. Other issues are with regard to the maintainability of the suit, claim for mesne profits and as to payment of rents by the defendant.
7. PW1 was examined on behalf of the plaintiffs and Exs.A1 to All have been marked. On behalf of the defendants DW1 to DW3 have been examined. On this evidence, the learned District Munsif held that the plaintiffs were entitled to evict the defendant from suit premises and they are entitled to a sum of Rs. 960 towards rents with interest at 6% per annum and that they were entitled to mesne profits at the rate of Rs.50/- per month. The suit for possession, rents, and mesne profits was accordingly decreed. Aggrieved by this judgment, the defendant preferred AS No.95 of 1981 and the plaintiff preferred AS No. 104 of 1981 aggrieved by awarding of Rs. 50/- per month as mesne profits claiming that the plaintiffs were entitled to more. The learned Additional District Judge, Vizianagaram, decided these two appeals under a common judgment. The plaintiffs appeal 104 of 1981 in respect of mesne profits has been dismissed. Similarly the defendant’s appeal against the decree for eviction and other reliefs has also been dismissed.
8. In this Second Appeal, though in the memorandum of grounds of appeal several issues have been raised, but the learned Counsel for the appellant has sought to argue on altogether different question which was not specifically raised in the memorandum of grounds of appeal. However, the grounds raised in the memorandum of grounds of appeal are mentioned briefly hereunder:
9. One of the grounds is that the suit property is a trust property and that it was dedicated for the public purposes i.e., for market, and as such the suit in the present form is not maintainable. It is conceded by the learned Counsel for the appellant that there is no evidence on record to support this contention. A contention was raised in the memorandum of grounds of appeal as to the invalidity of transfer of suit property by 3rd plaintiff in favour of 2rd plaintiff and about minor’s property vesting in the partnership firm. It may be stated at the outset that these issues were not pressed at all. It may be mentioned that, admittedly, the defendant was inducted into possession of the suit property by 3rd plaintiff. It is not open for a tenant or a licensee to question the title of the grantor.
10. The only question which is sought to be raised in this Second appeal is that both the Court below proceeded on the assumption that the transaction between the plaintiffs and the defendant was that of a lease. But, in fact it was an irrevocable licence and as such the suit of the plaintiffs for evicting the defendant could not have been decreed. This contention was not raised during the trial and during the first appeal. This ground has not been taken even in the memorandum of grounds of appeal in this second appeal. There is no basis for this contention in the written statement of the defendant. However, the learned Counsel for the appellant seeks to contend relying on a judgment of the Supreme Court in the case of Ramswaroop Gupta v. Bishun Narain Inter College, , that undue emphasis should not be laid on the question of lack of proper pleadings, instead substance of pleadings should be looked at. The contention of the learned Counsel appears to be that the facts and circumstances in this case reveal that the arrangement between the plaintiffs and the defendant was that of an irrevocable
licence in respect of the suit property and lack of pleadings on this aspect should not be a ground for this Court to refuse to go into this quesiton. It may be mentioned at the outset that in the case before the Supreme Court a specific plea was taken by the defendant that they entered into possession as licensee and constructed permanent buildings in open place on behalf of the Educational institutions of which the licensor continued to be the President for a long time and thereafter his wife became the President which position she continued to occupy. The specific findings was that in view of the facts and circumstances established in the case, the grant was in the nature of irrevocable licence though such specific pleas was not taken in the written statement. In this case it is not a mere question of want of pleadings on the part of the defendant that it was an irrevocable licence. On the contrary, the specific plea of the plaintiffs in para 3 (b) of the plaint is that it was a month to month tenancy under which the defendant has taken the premises. In the written statement not only there is no specific denial of this plea, on the other hand the case of the defendant himself is that he is a tenant of the suit premises. In the absence of any plea in this regard and in view of this question not having been raised in the first appeal, it is not open to the defendant to raise this question for the first time in the Second Appeal. Learned Counsel for the appellant, however, relying on a judgment of Supreme Court in the case of Chittori Subbanna v. Kudappa Subbanna, , contends that a pure question of law not depending on determining of any question of fact should be allowed to be raised for the first time in the grounds of appeal in the first appeal or at a later stage. This decision hardly helps the appellant. Whether a particular transaction between the plaintiff and defendant was a lease or a licence can, by no stretch of imagination, be considered as a pure question of law. At best it may be described as a mixed question
of law and facts. The contention of the learned Counsel for the appellant Sri T.Veerabhadraiah is that mere description of an arrangement between the parties as a lease or licence is not conclusive of the matter. It is the substance of the transaction, which has to be looked into. Reyling on the judgment of the Supreme Court in the case of Associated Hotels of India v. R.N. Kapoor, AIR 1959 SC 1263, the learned Counsel seeks to submit that irrespective of how the parties have described the transaction it is open to the Court to go into the issue and ascertain whether it was lease or an irrevocable licence. On this question, he also relies on a judgment in the case of Sri Sri Tarakesh Sio Thakur Jiu v. B. D. Dey and Company, . As observed by the Supreme Court in the decision cited by the learned Counsel in Associated Hotels of India v. R.N. Kapoor (supra), the real test in such matters is the intention of the parties whether they intended to create a lease or a licence. The observation that the description of the nature of the transaction by the parties is not conclusive and it is open to the Court to go into the terms of the agreement and ascertain the intention of the parties would generally apply to the interpretation of written agreements between the parties or to the construction of correspondence exchanged between the parties prior to arising of dispute between them. This does not seem to apply to specific pleas taken by the parties in the formal pleadings like plaint and written statement. When the defendant has taken a specific plea in the written statement that the agreement between him and the plaintiffs was in the nature of a lease, the intention of the defendant must be deemed to have been expressed formally in the written statement itself. The question of interpreting the pleadings in the written statement in the face of such specific plea would scarcely arise. Pleadings are formal expression or statement of the case of the parties. If an admission of a certain
fact is made in such formal pleading like a written statement, the only way such admission can be retracted from would be by seeking an amendment of the pleading. At no stage was any attempt made by the defendant to have his written statement amended to incorporate the plea that the arrangement between him and the plaintiff was in the nature of irrevocable licence and not lease. At any rate, it may be observed that even assuming that this question could be permitted to be raised in the second appeal for the first time as a question of law, this plea has to be based on admitted or proven state of facts. In this case both the plaintiffs and the defendant proceeded on the footing that the agreement between them was in the nature of a lease. At any rate, no material has been placed on record to show that it was in the nature of an irrevocable licence. It may be pointed out that under Section 100 CPC the scope for entertaining new pleas for the first time in a second appeal is very narrow and limited. Apart from the requirement that what is sought to be raised constitutes a substantial question of law, such a plea must be based on facts admitted or proved. A mixed question of fact and law, which depends on proof of certain facts, can scarcely be countenanced for the first time in the second appeal. In the case of Kishitish Chandra Purkait v. Santosh Kumar Purkait, , the Supreme Court disapproved entertaining of a plea of non maintainability of the suit by the Calcutta High Court. The Calcutta High Court went into a plea of non maintainability of the suit on the ground that it was a legal plea and that if the suit on the basis of it is not maintainable the fact that no specific plea was taken or no proper issue was framed was of little consequence. But the Supreme Court disapproved this approach and set aside the judgment of the Calcutta High Court based on such plea. In the case of Babu Ram alias Durga Prasad v. Indrapal Singh (dead) by LRs.,
, the Supreme Court held that under Section 100 CPC, the High Court has no jurisdiction to give a finding on an issue which was not present in the trial Court. In the case of Union of India v. EID Parry (India) Limited, 2000 AIR SCW 386, in a suit filed against the Railways for recovery of excess demurrage charges the Supreme Court held that even plea that the rules under the Railway Act were ultra vires was not permissible to be raised for the first time in the Second Appeal even though it was a pure question of law. In view of this, the appellant cannot be permitted to raise the question as to whether the defendant was tenant or held the suit premises under an irrevocable licence for the first time in the second appeal.
11. Before I conclude it appears proper to deal with a contention raised by the learned Counsel for the appellant. It is urged that even an admission by the defendant that the agreement between the plaintiffs and the defendant was in the nature of a lease should not prevent the Court from ascertaining the real nature of the transaction between them, if the facts of the case disclose otherwise. As stated above, description of a document for any purpose prior to initiation of litigation would stand on a different footing from description of the document in the pleadings. Admissions are binding unless they are explained or shown to be false. They constitute waiver of proof by the opposite side. Admissions of fact dispense with the proof of such fact by the opponents. But admission can also be made in respect of inference from facts. In this case whether a particular transaction was a lease or not is an inference from certain facts relating to the agreement between the parties. A party can make an admission not only in respect of the facts but also in respect of inference that could be derived from such facts. An admission of
inference is as much an admission as admission of facts. Such admissions cannot be given a go-bye by allowing the party concerned to set up a plea contrary to such admissions. The only was as stated above which is available to a party to a litigation making any admission in formal pleading is seeking an amendment of the pleading. In this case, as noted above, no amendment has been sought at any stage in the proceedings.
12. In view of this there is no escape from holding that there is no merit in the
appeal.
13. In regard to the cross-objections as to the quantum of mesne profits granted by the trial Court and affirmed by the first appellant Court, it may be mentioned that there is no evidence on record for ascertaining the quantum of mesne profits. Both the Courts below adopted the amount fixed as rents as the quantum of mesne profits. There is no reason as to why this finding should be interfered with.
14. In the result, the appeal as well as cross objections are dismissed. In the circumstances there shall be no order as to costs. However, the appellant is granted four months’ time for vacating the premises from today.