Andhra HC (Pre-Telangana)
E.R. Badiri Narayana vs K. Nagappa on 18 January, 1999
Equivalent citations: 1999(2)ALD501, 1999(2)ALT578, 1999 A I H C 2217, (1999) 2 ANDHLD 501, (2000) 2 ANDHWR 187, (1999) 2 RENCJ 140, (1999) 1 RENCR 579, (1999) 2 ANDH LT 578
JUDGMENT
1. The appeal has been preferred by the legal representative of the original defendant in OS No.114 of 1991 against the reversing judgment and decree dated 18-7-1994 in AS No.3 of 1992 on the file of the II Additional District Judge, Kurnool.
The Civil Revision Petition No.711 of 1989 has been preferred by the decree holder in RCC No.31 of 1982 on the file of the Rent Controller, Kurnool, against the order passed in EA No.407 of 1987 in EP No.291 of 1987 dated 29-10-1987.
2. As the parties in both the proceedings are common and the issue involved in both matters is common, they are being disposed of by this common judgment.
3. The facts giving rise for this appeal and the civil revision petition are as follows:
(i) R. Sheshamma (since deceased) was the owner of the building bearing door number 66/134 situated within the Municipal limits of Kurnool town. The said building comprises into three portions having separate door numbers. The portion bearing door number 66/134-A was let out to K. Nagappa, the respondent herein long back on a monthly tenancy. He has been carrying on his business as a medical practitioner in Ayurvedic medicine. The other two portions bearing number 66/134-B and 66/134-C have also been let out to the other tenants. The landlady-Sheshamma filed an Eviction Petition RCC No.31 of 1982 against the tenant-Nagappa for eviction on the ground that he committed wilful default in payment of rent from 1-5-1981. The tenant denied the tenancy of Sheshamma and set up the plea that he was inducted into possession by one Shiva Kmttar. Thereupon, Sheshamma added the said Shiva Kumar as second respondent in that eviction petition.
(ii) While that matter was pending, the parties entered into a compromise and a compromise decree was passed on 3-10-1985. The tenant-Nagappa, under the said compromise decree, undertook to vacate the premises within a period of six months therefrom. Instead of vacating the premises as agreed upon under the compromise decree, the tenant-Nagappa filed EA No.67 of 1986 for declaration that the compromise decree was invalid and inexecutable on the ground that it was recorded by Court without recording a finding for eviction. The Rent Control Court allowed EA No.67 of 1986 and the landlady-Sheshamma preferred revision against the said order to this Court in CRP No. 1823 of 1986 and the same was allowed. Thereupon, the landlady-Sheshamma filed EP No.291 of 1987 for execution of the compromise decree for eviction. The tenant-filed EA No.407 of 1987 for declaration that the compromise decree was inexecutable as it was obtained by playing fraud on the Court. The Rent Controller allowed that petition on 29-10-1987. As against that order, the landlady-Sheshamma preferred the revision to this Court in CRP No.711 of 1989. Subsequent to the death of the revision petitioner-Sheshamma, her legal representatives have been brought on record as revision petitioners 2 and 3.
(iii) The tenant-Nagappa after disposal of EA No.407 of 1987 by the Rent Controller filed the suit OS No. 114 of 1991 on the file of the Principal Sub-Court, Kumool, for recovery of a sum of Rs.6,020/-which includes the rent of Rs.4,800/- paid by him to the landlady-Sheshamma for the period from 29-9-1985 to 10-7-1987 and interest thereon alleging that the landlady-Sheshamma who is the owner of the suit house lost title to the property by virtue of the Land Acquisition Proceedings initiated by notification dated 27-1-1977 for acquisition of the suit house for expansion of the market area in Kurnool town; that an award was passed by Land Acquisition Officer on 21-3-1979 and compensation has been paid to the landlady-Sheshamma and the possession has been acquired by the Government for Kurnool Municipality. It is also pleaded in the suit that by suppressing all these factors and having lost title to the suit property by virtue of the acquisition by the Government, the landlady obtained eviction order in RCC No.31 of 1982 by playing fraud on the Court; that the landlady ceased to be the owner of the suit property and that the plaintiff is not liable to pay the rent to the landlady and that she has received the said rent illegally from the plaintiff and the plaintiff is entitled to recover the said rent paid by him together with interest thereon.
(iv) The defendant-landlady resisted that suit and filed her written statement denying the allegations made in the plaint. She admits the land acquisition proceedings initiating against the suit house and also passing of the Award. It is her positive case that the entire compensation together with interest has not been paid to her; that the possession was not taken over either by the Government or by the Municipality; that the Municipality has been demanding her to pay the house tax to the suit house and that she paid the house tax as per the demand; that she is not divested of her title to the suit house as actual physical possession was not taken over and that the relationship of landlady and tenant is still subsisting and the plaintiff is liable to pay the rent as long as the tenancy subsists; that the plaintiff is not entitled to recover the suit amount which has been paid to the defendant towards the rent; that there was no demand on the plaintiff either by the Government or by the Municipality for payment of rent and as such the plaintiff cannot avoid the payment of rent to the original owner; and that the suit has been filed mala fide to continue to enjoy the suit property without payment of rent to anybody and that the suit is liable to be dismissed with exemplary costs.
(v) The trial Court based on the pleadings settled the relevant issues for trial. During the course of trial, the plaintiff got himself examined as PW1 and marked Exs.Al to A23. On behalf of the defendant, DWs.1 and 2 were examined and Exs.B1 to B12 were marked. The defendant got herself examined as DW1 and her grandson-Badrinarayana who is now the appellant herein was examined as DW2.
(vi) On a consideration of the oral and documentary evidence placed before him, the learned trial Judge held that the possession of the suit house continued to be with the defendant even after the passing award in land acquisition proceedings; that the relationship of landlady and tenant is not snapped between the defendant and the plaintiff; and that the plaintiff is bound to pay the rent to the defendant till the relationship of landlady and tenant between them is put to an end; that the rent paid to the defendant is not illegal and as such the plaintiff is not entitled for recovery of the suit amount. Accordingly the learned trial Judge dismissed the suit without costs.
(vii) Aggrieved of the judgment and decree of the trial Court, the plaintiff preferred the appeal AS No.3 of 1992. During the pendency of that appeal, the landlady-defendant died and her grandson was added as second respondent in that appeal. On re-appreciation of the "entire evidence on record, the learned lower appellate Judge reversed the findings of the trial Court and held that the defendant ceased to be the owner of the suit house on account of the land acquisition proceedings and as such the relationship of landlady and tenant between the parties come to an end and as the defendant received the compensation amount awarded to the suit house, she is not entitled to collect the rent from the plaintiff-tenant and as such she is liable to refund the suit amount to the plaintiff. Accordingly, the learned appellate Judge allowed the appeal and decreed the suit with costs and with subsequent interest at six per cent per annum from the date of suit till the date of realisation against the estate of the deceased-first respondent in the hands of the second respondent.
(viii) As against that judgment and decree of the lower appellate Court, this appeal has been preferred by the legal representative of the deceased-defendant landlady.
4. Heard the learned Counsel on either side. The learned Counsel for the appellant and the revision petitioners took me through the impugned judgment of the lower appellate Court and also the order under revision and the evidence on record.
5. The learned Counsel for the appellant raised the following contentions :
(i) The lower appellate Court acted illegally in saying that the defendant ceased to be the owner of the building in view of the land acquisition proceedings and that the relationship of the landlady and tenant came to an end inspite of the fact that the possession of the suit house was not taken over either by the Government or by Kurnool Municipality;
(ii) The lower appellate Court also acted illegally in holding that the defendant is not entitled to receive the rents from the plaintiff in view of the fact that the defendant received the compensation with respect to the acquired suit house;
(iii) The lower appellate Court acted illegally in directing the defendant to refund the amount received by her towards the rent from the plaintiff.
6. The learned Counsel for the revision petitioners also contended that EP No.291 of 1987 was filed in execution of the compromise decree passed in RCC No.31 of 1982 and the executing Court ought not to have entertained the EA No.407 of 1987 challenging the said compromise decree in execution proceedings inspite of the fact that in the earlier proceedings in CRP No.1823 of 1986 this Court had specifically held that the compromise decree is executable against the tenant and that the order in EA No.407 of 1987 is vitiated by illegality and irregularity and the same is liable to be set aside.
7. The learned Counsel for the respondent-tenant submitted his arguments in support of the impugned judgment in the appeal and the impugned order in EA No.407 of 1987.
8. On a careful consideration of the entire evidence on record and the submissions made by the learned Counsel on either side, I am satisfied that there is much force in the contentions raised by the learned Counsel for the appellant and the revision petitioners. The contentions raised by the learned Counsel for the appellant are also substantial questions of law.
9. Admittedly, the plaintiff is the tenant of the defendant with respect to the premises Bearing number 66/134-A. She filed the eviction petition RCC No.31 of 1982 for eviction of the plaintiff from the suit premises. Though in the first instance, he took the plea that he was not a tenant but ultimately a compromise decree was passed and under the terms of the said compromise the plaintiff agreed to vacate the premises within six months therefrom. But, instead of vacating the premises, he filed EA No.67 of 1986 disputing the executability of the compromise decree and it has been finally held by this Court in CRP No. 1823 of 1986 that the compromise decree is executable and that finding has become final. While the defendant filed EP No.291 of 1987 for executing the compromise decree for eviction, the plaintiff once again filed an application in EA No.407 of 1987 taking up the same plea that the compromise decree is inexecutable as it was obtained by fraud by the defendant-landlady without disclosing that the suit house was acquired by the Government and that she lost title to the suit property by the date of filing of RCC No.31 of 1982 and as the landlady ceased to be the owner of the suit premises, she is not entitled to receive the rents and that EA No.407 was allowed. Embolded by the order in EA No.407 of 1987, the plaintiff filed the suit for recovery of rent paid by him earlier.
10. The crucial point that arises for consideration is whether the relationship of landlady and tenant between the defendant and the plaintiff came to an end as soon as the land acquisition proceedings were initiated and the award was passed and the compensation was received but the actual physical possession of the suit property was not taken over either by the Government or by Kurnool Municipality ? The other pertinent question requiring an answer is whether the receipt of the rents by the defendant subsequent to the acquisition proceedings from the plaintiff-tenant is illegal and whether she is liable to re-pay the same to the plaintiff?
11. There is no dispute that the suit house was acquired by the Government of Andhra Pradesh for the benefit of Kurnool Municipality for expansion of the existing market in Kurnool town. It is also not disputed an award was passed fixing the compensation. The defendant examined as DW1 also admitted that she received a sum of Rs.43,784.30 ps. as compensation for the suit house. She also deposed that she has to get some more compensation and also interest and that the possession of the suit premises was not takep over either by the Government or by Kurnool Municipality even though award was passed. There is a concurrent finding of fact by both the Courts below that the actual physical possession of the suit premises has not yet been taken over either by the Municipality or by the Government. To the end of para 9 of its judgment, the trial Court observed thus :
"All the circumstances would clearly go to show that the possession of the shop room in question continues with the defendant even after the acquisition."
In para 9 of its judgment, the lower appellate Court also observed thus :
"It is also not disputed that the physical possession of the building has not yet been taken over by the Municipality."
12. The next aspect to be considered is whether the initiation of the land acquisition proceedings against the suit premises itself divests the title of the defendant for the suit premises. There is a direct authority of the Supreme Court on this point in the Special Land Acquisition Officer, Bombay and others v. Ms. Godrej and Boyce, 1987 (2) LS 49 (SC), wherein their Lordships of the Supreme Court observed at page 50 thus:
"Under the scheme of the Act, neither the notification under Section 4 nor the declaration under Section 6 nor the notice under Section 9 is sufficient to divest the original owner of, or other person interested in, the land of his rights therein. Section 16 makes it clear beyond doubt that the title to the land vests in the Government only when possession is taken by the Government. Till that point of time, the land continues to be with the original owner and he is also free (except where there is specific legislation to the contrary) to deal with the land just as he likes, although it may be that on account of the pendency of proceedings for acquisition intending purchasers may be chary of coming near the land. So long as possession is not taken over, the mere fact of a notification under Section 4 or declaration under Section 6 having been made does not divest the owner of his rights in respect of the land or relieve him of the duty to take care of the land and protect it against encroachments."
The lower appellate Court tried to distinguish the observations of the Supreme Court in this decision by stating that the subject-matter of acquisition in that decision relates to vacant land and not to a building as in the case on hand. But, the observations of the Supreme Court are equally applicable even to a case where the acquisition relates to a building for the reason that it is categorically observed that the title to the acquired property continues to be with the owner till the actual physical possession of the acquired property was taken over. Hence, I have no hesitation to say, based on the decision of the Supreme Court that the defendant in this case was not divested of her title to the suit house as she continues to be in physical possession of the same.
13. The learned appellate Judge referred to provisions under Section 42(1) of A.P. Municipalities Act which reads as under:
"42. Procedure for acquisition of immovable property under the Land Acquisition Act, 1894 :-- (1) Any immovable property which any Municipal authority authorised by this Act to acquire may be acquired under the provisions of (he Land Acquisition Act, 1894, (Central Act 1 of 1894), and, on payment of the compensation awarded under the said Act in respect of such property and of any other charges incurred in acquiring it, the said property shall vest in Council."
Relying on this provision, the lower appellate Court observed that as the compensation awarded to the suit premises has been paid by the Municipality to the defendant and as such the suit property vests in the Municipal Council and the defendant ceased to be the owner and therefore she is not entitled to claim rent from the plaintiff-tenant. No evidence has been adduced on behalf of the plaintiff to prove that the entire compensation payable to the suit premises has been paid to the defendant. On the other hand, it is in the evidence of the defendant that she received only a sum of Rs.43,000/- and odd and that she has not been paid further sum towards compensation and interest. Therefore, the evidence on record does not disclose that the entire compensation awarded to the suit premises has been paid to the defendant so as to infer that the suit premises vests with the Municipal Council. Apart from it, as the evidence on record discloses that subsequent to the passing of the Award the Kurnool Municipality has not exercised the rights of ownership over the suit premises and, on the other hand, it recognised the ownership of the defendant in making demands for payment of property tax for the suit premises. Ex.Bl to B12 are the demand notices issued to the defendant and receipts for payment of property tax by the defendant with respect to the suit houses subsequent to the passing of the award. If really the title had vested with the Municipality, there would not have been such demands for payment of properly tax and also payment of property tax by the defendant.
14. Further, the defendant used to exercise the rights of ownership over the building she had been collecting the rents not only from the plaintiff but also from other tenants with respect to other portions in the same building. Further, it has also come in evidence that the Municipality did not make any demand for payment of rent from the tenants of the suit building. If really the title had vested with the Municipality and the compensation has been paid in entirety the municipal authorities would not have failed to make demands for rent from the tenants of the suit building. The plaintiff-tenant examined as PW1 admits on this aspect and states in his cross-examination thus:
"Municipality did not make any demand on me for payment of the rent for the shop to it till today. The Municipality did not issue any notice to make asking me to vacate the shop. I am continuing in the shop as a tenant till today. I have not received any communication either from the Government or from the Municipality that the possession of the shop was taken over by them in pursuance of the acquisition."
PW1 further stated in his cross-examination thus:
"In the plaint filed by me in this suit I have not averred that the defendant played fraud on me. Even without the defendant demanding me to pay the rent, I have been voluntarily paying the rent to her during the period in question..... After I stopped payment of rent to the defendant, I have not paid rent either to the Government or to the Municipality for the subsequent period till today."
It is clear from this that the Municipality never exercised the rights of ownership over the suit house and that the Municipality never took possession of the same and the actual physical possession continues to be with the defendant and the plaintiff continued to be the tenant of the defendant-landlady. The plaintiff was also not asked by the Municipality or by any other authority to pay the rent to it.
15. The plaintiff himself admits that he continues to be the tenant for the said premises and that he was not questioned by anybody for paying the rent to the defendant who is his landlady. A tenant has to pay the rent for his occupation of the premises and he has to pay the rent to the person who inducted him into possession of the premises. It is not open for the tenant to dispute the title of his landlord or refuse to pay the rent when there is no rival claim for payment of rent disputing the title of his landlord. If in case there are any such rival claims, then the'tenant has to resort to the provisions under the Rent Control Act and deposit the rents into Court after obtaining necessary permission from the Rent Controller. In the instant case, even in the absence of such rival claim, the plaintiff-tenant stopped paying rent to the defendant who is his landlady for the reason that the proceedings under the Land Acquisition Act have been initiated. He himself admits that he neither paid rent to his landlady nor to the Municipality which he claims to be the rightful owner after acquisition. We would have appreciated his stand for not paying the rent to the defendant if the plaintiff had paid the rent either to the Municipality or deposited in the Court of the Rent Collector. But, he failed to do so.
16. Under the compromise decree he agreed to vacate the premises but failed to do so and when that compromise decree was being executed he had come up with untenable petitions to stall the delivery of the suit premises to the landlady. The impugned order in EA No.407 of 1987 is vitiated by illegality and irregularity and it is not open for the executing Court to go behind the decree and to hold that the said decree was obtained by fraud when, in fact, the tenant failed to substantiate such a plea. The law is well settled that the Executing Court has no power to question the correctness of the decree or to entertain an objection that it had been obtained by fraud. The Executing Court cannot decide the rights of the parties under the decree. But, where there is a question of want of jurisdiction involved it is open to the executing Court to go behind the decree for the limited purpose of finding out whether, in fact, the decree was passed without jurisdiction and beyond that it cannot go. An executing Court is not the proper forum to go into questions of substantive law. Hence, the impugned order in EA No.407 of 1987 is liable to be set aside as it is vitiated with irregularity and illegality.
17. As admitted by the plaintiff himself, as quoted supra, the relationship of landlady and tenant continues between the defendant and the plaintiff and as such it is not open for the plaintiff to stop payment of the rent or to recover the rent which had already been paid by him to the defendant. The claim of the defendant for the rent due to the suit premises is legal and the plaintiff is bound to pay the same. He is not entitled to make a demand for refund of the rents which he had already paid. It is not open to him to set up the plea that she lost title to the suit premises.
18. On a careful consideration of the entire evidence on record in both the matters, I have no hesitation to conclude that the plaintiff had resorted to this sort of litigation with a mala fide intention to continue in possession of the suit premises without paying rent either to the defendant or to the Government or Municipality and it is a vexatious litigation and the plaintiff has resorted to the same by abusing the process of the Court. Hence, the plaintiff is also liable to pay exemplary costs to the defendant-landlady.
19. For the foregoing reasons, I hold that the plaintiff is not entitled for the reliefs prayed for either in the suit OS No. 114 of 1991 or in EA No.407 of 1987 and the same are liable to be rejected and the revision and the appeal have to be allowed.
20. In the result, the second appeal is allowed with costs. The judgment and decree in AS No.3 of 1992 under appeal are set aside. The judgment and decree of the trial Court in OS No.114 of 1991 dismissing the suit are restored. The Civil Revision Petition No.711 of 1989 is allowed with costs and the impugned order in EA No.407 of 1987 is set aside.
21. The plaintiff in OS No.114 of 1991 is directed to pay a sum of Rs.3,000/-(Rupees three thousand only) as exemplary costs to the appellant herein- E.R. Badrinarayana who is the legal heir of the deceased-defendant in the said suit.