Andhra HC (Pre-Telangana)
Srinivasa Rajakamal (Died) By Lrs. vs Neelamsetti Kataji Rao And Ors. on 20 June, 2002
Equivalent citations: 2002(5)ALD740
JUDGMENT C.Y. Somayajulu, J.
1. This is an appeal by the defendant in OS No. 265 of 1982 on the file of the Court of the I Additional Subordinate Judge, Visakhapatnam. During the pendency of the appeal the sole appellant-defendant died. So, his legal representatives were brought on record as appellants 2 to 4. For the sake of convenience I would hereinafter refer to the parties as they are arrayed in the trial Court.
2. The suit is for recovery of possession of the property specified in the plaint B schedule, hereinafter called the suit property, which is a part of the property specified in plaint A schedule, and for recovery of rent and other reliefs. The case, in brief, of the plaintiffs, is that Narayana Rao was the owner of the plaint A schedule property of which the suit property is a part. Defendant took the suit property on lease from Narayana Rao and is continuing in possession thereof even after the expiry of period of lease as tenant holding over and had fallen in arrears of rent. Narayana Rao filed OS No. 974 of 1973 against the defendant for recovery of rent and OS No. 390 of 1974 seeking an injunction restraining the defendant from interfering with his possession over the rest of the property covered by A schedule except the suit property. Defendant filed OS No. 143 of 1977 seeking an injunction restraining Narayana Rao from interfering with his possession over the suit property. All the three suits were decreed after trial. During the pendency of the appeals against those decrees, Narayana Rao sold the plaint A schedule property to plaintiffs. Hence they got themselves impleaded as parties to the appeals against the decrees in OS No. 974 of 1977, OS No. 390 of 1974 and OS No. 143 of 1977. After issuing a notice to quit, plaintiffs filed the suit seeking eviction of the defendant, recovery of arrears of rent and damages. Defendant filed his written statement alleging that since Narayana Rao let out the suit property to him for 15 years, the suit is premature. Plaintiffs have no right to file the suit against him because the sale deed in their favour is only nominal. On the pleadings, trial Court framed six issues for trial. On behalf of plaintiffs, 1st plaintiff was examined as PW1 and Exs.A1 to A6 were marked. Defendant examined himself as DW1 and marked Exs.B1 to B16. The trial Court decreed the suit in favour of plaintiff for recovery of possession of the suit property and for recovery of Rs. 2,520/-towards arrears of rent with interest at 6% per annum from the defendant and dismissed the rest of the claim made by the plaintiffs.
Aggrieved by the decree for possession and rent passed against him, the defendant preferred this appeal.
3. Since plaintiffs did not prefer cross-objections in respect of the reliefs not granted to them, the only point for consideration is whether the plaintiffs are entitled to seek recovery of possession of the suit property from the defendant?
4. The main contention of Mr. Subrahmanya Narasu, learned Counsel for the appellant is that since suit property is governed by the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (the Act) civil Court has no jurisdiction to entertain a suit for eviction of the defendant therefrom. It is his contention that either due to a mistake or oversight the defendant did not raise the plea relating to want of jurisdiction of civil Court to entertain a suit for eviction by the trial Court, and so the appellants who are the legal representatives of the defendant are seeking leave to file additional written statement taking the plea relating to want of jurisdiction of civil Court, a pure legal plea, which can be taken at any stage, and so the said petition may be allowed since leave to amendment written statements can be granted even at the stage of appeal also, and the suit may be dismissed with a direction that the plaintiffs to file a petition before the Rent Controller under the Act. He relied on Ramlal v. Kisanchandra, AIR 1924 PC 95, where it is held that an objection relating to jurisdiction can be taken at any stage and on Hira Lal v. Kalinath, , and Govinddas v. Parameshwaridas, (FB), where it is held that an objection as to inherent lack of jurisdiction can be taken even at the time of execution, and contended that since in B. Narsing Rao v. Parvathi Bai, 1977 ALT 627, it is held that in respect of buildings covered by the Act, civil Court has no jurisdiction to entertain a suit for eviction of a tenant, appellants can take the plea of lack of jurisdiction to civil Court in appeal also. Relying on Pandurang Kalu Patil v. State of Maharashtra, , where it is held that the decisions of the Privy Council are binding on the High Courts so long as the Supreme Court did not overrule them, he contended that since the view taken by the Privy Council in Ramlal case (supra) is not overruled by the Supreme Court, the ratio in that decision has to be applied to the facts of this case, and so the decree under appeal is liable to be set aside. His next contention is that the trial Court was in error in holding that the findings in the judgment in the suits filed by Narayana Rao against the defendant and the defendant against Narayana Rao are res judicata, when no such plea was taken in the pleadings and when no issue was framed in that regard. It is his contention that due to non-framing of the issue, defendant was deprived of an opportunity of saying what he had to say on the aspect of res judicata and thereby great prejudice occurred to the defendant. His next contention is that in any event, in view of Ex.B1 the suit is premature. His final contention is that till LPA No. 290 of 2001 filed against the judgment in AS No. 1735 of 1991 is disposed of, this appeal cannot be heard. The contention of Mr. T. Veerabhadrayya, learned Counsel for the plaintiffs is that since defendant got himself impleaded as a party to the proceedings in OS Nos. 974 of 1973, 390 of 1974 and 143 of 1977, the judgment in those appeals is binding on the parties thereto and the findings therein operate as res judicata though no issue on the question of res judicata is framed because defendant and plaintiffs knew that fact and went to trial and adduced evidence on that question. He relied on Kameswaramma v. Subba Rao, , where it is held that when parties to go to trial knowing the rival case and let in evidence not only in support of their contention but in refutation of that of the other side, absence of an issue is not fatal. He contended that in Ex.A5 reply sent by the defendant, the defence taken by him is that till the litigation in OS No. 390 of 1974 and OS No. 143 of 1977 is finally decided, he cannot be evicted, and since the defendant did not take an objection to the jurisdiction of the civil Court, his legal representatives cannot take a plea which is inconsistent with the plea taken by the defendant, relying on Kamsala Narasappa v. Hussain Sab, AIR 1935 Mad. 52, where it is held that a party who comes on record as a legal representative of another, cannot be allowed to depart from or vary or contradict the attitude taken up by the party whose legal representative he is. He contended that in any event since the plea now taken in the additional written statement to be filed is diametrically opposite to the plea in the original written statement, such plea cannot be allowed by relying on Md. Ishaq v. Md. Iqbal and Md. Ali & Co. AIR 1978 SC 789, and Heera Lal v. Kalyan Mal, , where it is held that application for amendment of written statement introducing a new plea, or withdrawing admission, or a plea which totally displaces the case of the plaintiff and causes irretrievable prejudice to him cannot be allowed in appeal.
CMP No. 2782 of 1997:
5. Though this petition is to permit the appellants, who came on record as legal representatives of the deceased-defendant to file, an additional written statement, it in fact is akin to a petition seeking amendment to the written statement filed by the defendant introducing an additional ground of defence. As held in Md. Ishaq (supra) and Heera Lal (supra) petition for amendment introducing a plea, which is diametrically opposite to the earlier stand, or which has the effect of withdrawing an admission made and which causes irretrievable prejudice to the plaintiff cannot be allowed. The defendant did not take the plea that civil Court has no jurisdiction to entertain the suit, obviously because he knew that civil Court has jurisdiction. So appellants who came on record as his legal representatives cannot be permitted to take a plea which is diametrically opposite to the stand of defendant more so because it takes the plaintiffs by surprise and causes irretrievable prejudice to them. For that reason alone this petition is liable to be and hence is dismissed. Even though I am dismissing this petition I would consider the plea of want of jurisdiction taken by the appellants in the additional written statement while deciding the point for consideration in the appeal.
Point :
6. There can be no two opinions that the validity and enforceability of a decree passed by a Court which lacks inherent jurisdiction, can be questioned at any time, even at the time of execution also as held in Ramlal (supra), Hira Lal (supra) and Govind Das (supra). In this case the question is whether civil Court lacks inherent jurisdiction to order eviction of the defendant from the suit property.
7. The averments in the plaint show that Narayana Rao constructed three rooms with asbestos roof in the south-eastern portion of the property covered by plaint "A" schedule and let out the middle room (suit property) to the defendant on a monthly rent of Rs. 70/- and that plaintiffs purchased the plaint 'A' schedule property from Narayana Rao under a registered sale deed dated 30-3-1978 and got themselves impleaded as parties to the suits filed by Narayana Rao against the defendant, and also in the suit filed by the defendant against Narayana Rao in respect of the plaint A and B schedule properties, and subsequently got a quit notice issued to the defendant terminating his tenancy in respect of suit property. The specific case of the defendant in the written statement filed by him is, as per the lease deed dated 9-12-1969 in respect of the suit property his tenancy is for 15 years, and plaintiffs, who got themselves impleaded as parties to the appeal filed against O.S.No. 143 of 1977 etc., are not entitled to any relief in this suit till the disposal of the appeals, since decision therein would be binding on them. He specifically denied the allegation that plaintiffs purchased plaint A schedule property from Narayana Rao under a registered sale deed and look a plea that even if such a document is in existence, it is not true, valid and binding on him, and as his tenancy and the question of ownership of the plaintiffs in respect of the plaint A schedule property are being considered in another suit, plaintiffs cannot seek his eviction from the suit property. Therefore it is clear that defendant disputed the title of the plaintiffs to the property covered by A schedule, of which the suit property is a part. In fact in para 3 of Ex.A5, reply notice got issued by the defendant to the plaintiffs, defendant specifically alleged that plaintiffs have neither title to plot No. 34 (i.e., plaint A schedule property) nor are they in possession thereof, and so they have to first get a decree from a Court declaring their title to the property. In view thereof reference to Section 10(1) of the Act would be useful, with regard to jurisdiction of civil Court in respect of buildings covered by the Act. It reads-
"A tenant shall not be evicted whether in an execution of decree or otherwise except in accordance with the provisions of this section or Sections 12 and 13 provided that where the tenant denies the title of the land or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the sub-section notwithstanding the fact that such denial does not involve forfeiture of lease or that the claim is unfounded".
It is therefore clear that the Act does not completely oust the jurisdiction of civil Courts to grant a decree for eviction of a tenant in respect of buildings which come within its purview. It is no doubt true that a plain reading of the above subsection shows that in a petition for eviction filed by a landlord against a tenant, if the tenant denies the title of the landlord, only if the Controller holds that such denial is not bona fide, the landlord can file a civil suit for eviction of the tenant, meaning that recording of a finding by the Rent Controller that denial of title by the tenant is bona fide is necessary for the civil Court exercising jurisdiction to entertain a suit for eviction of a tenant in respect of a building governed by the provisions of the Act. The above provision in the Act clearly shows that there is no complete ouster of jurisdiction of civil Court to order eviction of a tenant even in respect of buildings governed by the provisions of the Act. In J.J. Lal Pvt. Ltd. v. M.R. Murali, 2002 AIR SCW 794, while considering the scope of Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), which is in pan materia with Section 10(1) of the Act, the Supreme Court in para 20 of its judgment, held as follows :
"By having regard to second proviso to Sub-section (1) of Section 10 of the Act, the bar on the jurisdiction of civil Court stands lifted and the landlord becomes entitled to sue for eviction of the tenant in a civil Court enabling such civil Court to pass a decree for eviction on any of the grounds on which the Controller could have directed eviction under Sections 10, 14 or 16, notwithstanding the opinion formed by the civil Court that the claim of permanent tenancy was unfounded. This is how any conflict of jurisdiction between civil Court and Controller can be avoided by construing Section 10(2)(vii) and Section 10(1) second proviso homogeneously and as part of one scheme. The legislative intent appears to be that denial of title can be decided by the Controller for the limited purpose of finding out whether a ground of eviction is made out but the questions of title should be left to be determined by the civil Court. Once a question of title has arisen between a landlord and a tenant and such dispute is bona fide, the doors of civil Court are let open to the landlord and therein, adjudication, on grounds of eviction otherwise within the domain of Controller, is also permitted so as to avoid multiplicity of suits and proceedings. All the disputes between landlord and tenant would be settled in one forum and the need for prosecuting two separate proceedings before two fora would be eliminated", (underlining mine).
Therefore it is clear that civil Court does have jurisdiction to order eviction of a tenant even in respect of buildings covered by the Act, when question of title of the landlord of the demised premises is put in issue depending on the facts and circumstances of each case and so the question of jurisdiction is not a pure question of law.
8. The defendant as DW1, during chief examination on 9-7-1985, stated that plaintiffs have not purchased the property (i.e., property covered by plaint A schedule). During chief examination on 16-7-1985 he stated that the property purchased by the plaintiffs (i.e., plaint A schedule property) is no way concerned with or correlated to the suit property i.e., they are not one and the same. From the evidence of defendant also it is clear that he did not admit, but in fact denied the title of the plaintiffs to the suit property. As stated earlier in Ex.A5 reply notice got issued by him the defendant clearly stated that unless plaintiffs obtain a decree declaring their title to the suit property, they cannot seek his eviction. Thus it is clear that the defendant denied the title of the plaintiffs to the suit property not only before the filing of the suit but in the suit also.
9. B. Narsing Rao case (supra) relied on by the learned Counsel for the appellant has no application to the facts of this case. In that case petition filed by a tenant under Section 9, which empowers a tenant to deposit rent for the demised premises before the prescribed authority, was allowed and that order was upheld by this Court in revision. Since under Section 9 of the Act a tenant of a premises covered by the Act only, but not all and sundry, can be given permission to deposit rent into Court, in view the fact that the tenant was given permission to deposit rent into Court in a petition filed by him under Section 9 of the Act, it was held that that order clothes the petitioner with the status of a tenant as defined in the Act and so suit for eviction cannot be fifed directly in a civil Court. In this case defendant did not initiate any proceeding under Section 9 of the Act impleading the plaintiffs as parties to that petition. When plaintiff got issued a notice to the defendant intimating him about their purchasing plaint A schedule property and asking him to pay rent in respect of the suit property, he gave Ex.A5 reply alleging that unless they get a declaration of their title to the suit property they have no claim against him i.e., he denied the title of plaintiffs to the suit property. Thereafter plaintiffs filed the suit seeking eviction of the defendant. Obviously because the defendant knew, or thought that his denial of the title of the plaintiffs to the suit property is bona fide, he did not take a plea in his written statement about the civil Court not having jurisdiction to entertain the suit for eviction against him. Or else he would not have questioned the jurisdiction of the civil Court to entertain the suit for his eviction in respect of the suit property. So appellants who came on record as legal representatives of the deceased cannot be permitted to take a plea diametrically opposite to stand of the deceased defendant.
10. At this stage 1 wish to point out the definition of 'Controller' in the Act which came into force in 1960.
"Any person not below the rank of a Tahsildar appointed by the Government to perform the functions of a Controller under this Act".
At the time of passing of the Act, the Legislature might have intended that officers other than Judicial Officers should be notified by the Government as 'Controllers' under the Act, by prescribing summary procedure for deciding applications under the Act. Therefore probably under the impression that empowering officers other than Judicial Officers deciding complicate question of title would not be proper. Section 10(1) of the Act must have been incorporated to see that when there is a bona fide dispute of title, civil Court only, but not the Controller (who was not a Judicial Officer) that should decide the question. By Notification G.O. Ms. No. 4, dated 3-1-1966, only the District Munsifs (now Junior Civil Judges) were designated as 'Controllers' under the Act with effect from 25-1-1966. Earlier thereto Revenue Division Officers of the Revenue Sub-Division in which the building covered by the Act was situate was discharging the functions of 'Controller' under the Act. Now that Junior Civil Judges are discharging the duties of 'Controller' under the Act, they could have been empowered to determine the question of title also, by suitably amending Section 10 of the Act, after notification in G.O. Ms. No. 4, dated 3-1-1966 was issued. But it was not done. So the position now is a Junior Civil Judge who while functioning as Rent Controller cannot decide the question of title in the RCC, can as civil Court discharging the functions of a Junior Civil Judge, after question of title is referred to civil Court, can decide the question of title, of course if the value of the building is within his pecuniary jurisdiction. Thus the same Presiding Officer, while working as Junior Civil Judge is empowered to decide the question of title after he, as 'Controller' referred the question of title to civil Court. This anomaly seems to have not been noticed by the concerned. Be that as it may, the position of law as of now is Rent Controller cannot decide the question of title, if the tenant disputes the title of the landlord, when such denial is bona fide.
11. As stated earlier the exclusion of the jurisdiction of civil Court under the Act is not absolute. It does have jurisdiction to order eviction of a tenant if he bona fide disputes the title of the landlord. As stated earlier because the defendant felt that his denial of title of the plaintiffs to the suit property is bona fide, he did not take the plea that Rent Controller only has to order his eviction and that civil Court has no jurisdiction to entertain the suit for his eviction. Appellants do not even assert or say that they admit the title of the plaintiffs to the suit property. Therefore even if plaintiffs are directed to file a petition seeking eviction of appellants under the Act, since appellants are not admitting the title of the plaintiffs to the suit property, they would naturally file a counter denying the title of the plaintiffs to the suit property. Then Rent Controller would direct the plaintiffs to get a declaration of their title from a civil Court. The civil Court any way has to go into the question whether the plaintiffs have title to the suit property or not. So except buying time, appellants do not have a special advantage if the plaintiffs are asked to file a petition before Rent Controller seeking their eviction from the suit property. Thus it is clear that the intention of the appellants is to keep alive the dispute for as long as time as possible, and so it is clear that there are no bona fides in the plea taken by the appellants in their additional written statement.
12. The contention of the defendant that by virtue of Ex.B1 he was entitled to continue in possession of the suit property for a period of 15 years, and hence the suit is premature has no force. The title given to Ex.B1, which is unregistered document written in Telugu is 'Agreement -Possessory Mortgage Deed'. The recitals in Ex-B1 show that for an amount of Rs. 8,700/- borrowed by Narayana Rao from the defendant, the defendant can enjoy the property described therein for 15 years. Therefore Ex.B1 is but a document evidencing usufructory mortgage and hence as per Section 17 of Registration Act requires registration. Since Ex.B1 is not registered, the terms and stipulations therein cannot be taken into consideration for deciding the, rights of the parties thereto, and so defendant, by relying on Ex.B1, cannot claim that he is entitled to be in possession of the suit property for a period of 15 years, and that he cannot be evicted from the suit property for a period of 15 years from the date of Ex.B1 i.e., 9-12-1969.
13. The other contention of the defendant is that the trial Court was in error in holding that the judgment in OS No. 143 of 1977 etc., operates as res judicata, when there was no plea or issue in that regard. Though prima facie the contention appears to have some force, on a deeper examination I am unable to agree with the said contention. It is no doubt true that there is no specific issue on the question as to whether the common judgment in OS No. 143 of 1977 etc., operates as res judicata. It is well known that when parties go to trial and adduce evidence on the facts relevant for a decision in the case, the absence of an issue does not vitiate the finding arrived at by the Court, basing on the evidence adduced by the parties to the suit as held in Kameswaramma case (supra). The specific case of the defendant, in para 6 of his written statement, is that during the pendency of appeal against the decree and judgment in OS No. 143 of 1977 plaintiffs cannot seek any relief, and since plaintiffs also are parties to the appeal against the decree in OS No. 143 of 1977, the judgment therein would be binding on them i.e.. the plaintiffs.
If the judgment in the appeal against the decree in OS No. 143 of 1977 is binding on plaintiffs, it equally binds the defendant also. Defendant as DW1 admitted that AS No. 43 of 1981 preferred against the decree in OS No. 143 of 1977 was dismissed and that he preferred a second appeal against that judgment and decree. During cross-examination he stated that he did not prefer any revision challenging the order impleading plaintiffs as parties to OS No. 143 of 1977, and that he is in possession of the suit property as per the deed dated 9-12-1969 i.e., Ex.B1 but not as per the lease deed dated 1-11-1969 and so he is entitled to remain in possession thereof for 15 years, and that the Courts held that he is in possession only under the lease deed dated 1-11-1969, and not under the deed dated 9-12-1969 (i.e., Ex.B1) and the same finding was confirmed by the first appellate Court and that the plaintiffs were added as defendants 6 to 8 in OS No. 143 of 1977 and that Narayana Rao was alive by the date of the judgment in OS No. 143 of 1977, and that Narayana Rao did not file written statement denying that he executed a sale deed in favour of the plaintiffs and that he does not remember whether he filed any rejoinder in OS No. 143 of 1977 after the plaintiffs were added as parties thereto. When it is the case of the defendant himself that the judgment in AS No. 43 of 1981 etc., which arose out of the decree in OS No. 143 of 1977 etc., is binding on the plaintiffs, it equally binds him also, and so merely because no specific issue on the question of res judicata was framed in this case, the finding of the trial Court that the judgment in the appeal against OS No. 143 of 1977 to which plaintiffs and defendant are parties in respect of the same subject-matter, operates as res judicata cannot be found fault with.
14. The next contention that since the judgment of this Court in AS No. 1735 of 1991 is questioned in LPA No. 290 of 2001, this appeal has to await the judgment in LPA No. 290 of 2001, has no substance. AS No. 1735 of 1991 is said to have arisen out of suit filed by the heirs of Narayana Rao for cancellation of the sale deed (Ex.A1) executed by Narayana Rao in favour of the plaintiffs. Defendant did not take a plea that the result of the suit between plaintiffs and heirs of Narayana Rao has a bearing on this suit. No petition under Section 10 CPC to stay this suit during the pendency of that suit out of which AS No. 1735 of 1991 arose was filed. So this suit need not be stayed till LPA No. 290 of 2001 is decided, more so because the jural relationship between the plaintiffs and defendant and the title of the plaintiffs to the suit property was already decided in AS No. 43 of 1981 etc., filed against the common judgment and decrees in OS No. 143 of 1977 etc. There is nothing on record to show that second appeals against the judgment in AS No. 43 of 1981 etc., were preferred. So the judgment in AS No. 43 of 1981 etc., is binding on the defendant.
15. Plaintiffs filed the suit for eviction of the defendant after issuing a notice to quit. The fact that the defendant denied the title of the plaintiffs to the suit property itself is sufficient to pass an order of eviction against the defendant and consequently against the appellants. So I hold that the plaintiffs are entitled to seek eviction of defendant and consequently the appellants who came on record as his legal representatives, from the suit property. The point is answered accordingly.
16. In view of my finding on the point for consideration, I find no merits in this appeal and hence the appeal is dismissed with costs. Three (3) months time is granted for the appellant i.e., legal representatives of the deceased-defendant to vacate the suit property.